Affirmative Defenses: The Sequel

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By Meghan Droste November 14, 2018

In April, I shared the Commission’s decision in Jenna P. v. Department of Veterans Affairs, EEOC App. No. 0120150825 (Mar. 9, 2018), which addressed what happens when an agency fails to make a complainant whole after a report of harassment.

The complainant’s first line supervisor sexually harassed her for several months, escalating from inappropriate comments to sharing sexually explicit videos he filmed with another agency employee.  After her second line supervisor learned of the harassment, he took immediate action, including removing the harasser’s supervisory duties, scheduling training, and initiating an investigation.  Within two days the harasser resigned.

Although the agency took several key steps to address the harassment — and did so promptly — the Commission concluded that the agency was unable to establish its affirmative defenses because it failed to make the complainant whole when it did not restore her sick leave and pay the back pay for the leave without pay the complainant used as a result of the harassment. This decision is a good reminder of why it is so important to determine the full extent of the harm and then address it.

I thought the Commission’s decision in Jenna P. was fairly straightforward and reasonable. However, the agency appears to have taken a different view because it filed a request for reconsideration. Jenna P. v. Dep’t of Veterans Affairs, EEOC Req. No. 0520180337 (Aug. 2, 2018). In its request, the agency argued that it should not be liable for the harassment because the complainant took an unreasonably long time to report it, waiting more than seven months from the initial harassing conduct. The agency also questioned the finding that the complainant found the harassment unwelcome, arguing that she only seemed to object after her fiancé discovered the sexually explicit videos the supervisor sent to her. Finally, the agency argued that the Commission’s decision did not fully address that the harm was flawed because the complainant did not request the restoration of her sick leave or request back pay for the leave without pay until well after the agency had initiated its response to the report of harassment.

When the Commission denies a request for reconsideration, it generally does so in a paragraph or two. It will usually remind the parties of the very limited circumstances in which it will grant such a request and then state the request does not fall within one of the categories.  We get a bit more detail in Jenna P. The Commission reminds the agency that it knew, before it learned of the supervisor harassing the complainant, that the supervisor had an “unprofessional interest in his female coworkers.” The Commission also relies on the complainant’s probationary status and the “egregious” nature of the harassment to dispose of the agency’s argument that she should have reported the harassment earlier.  The fact that the harassment increased in severity from complimenting the complainant’s appearance to homemade pornography weighed heavily in the complainant’s favor and made it reasonable and understandable that she did not report the harassment immediately.

The facts in this case — a supervisor who repeatedly harasses his subordinate, escalating from comments to sexually explicit material, while reminding her of the significant power imbalance between them and that he holds her job in his hands — unfortunately are not uncommon. I encourage you all to review the Commission’s unusually detailed decision and consider it when addressing reports of harassment. Droste@FELTG.com

The (Good?) Old Days in Civil Service Law

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By William Wiley, November 14, 2018

Hey, smart people! Guess what this is?

The photo above is of an “Appeals System” 9×12 card that I took off of a Navy bulletin board in the mid-70s. It shows the appeals processes available to federal civilian employees in 1969.

I thought you might like to know what it was like Back in the Day when old Bill Wiley started in this business. First, there are three major differences in how adverse actions were viewed back then:

  • “Reduction in Rank” was just as appealable as was a monetary or grade demotion. Rank was given an extremely broad definition. If I was reassigned from supervising eight subordinates to only seven, here comes an appeal. Move my office from the top floor to the basement, my rank is starting to feel reduced again. Easy to see why Congress did away with this concept when it passed the Civil Service Reform Act of 1978 (CSRA).
  • Today, to be entitled to a hearing challenging an adverse action, a suspension needs to be more than 14 days long. In 1969 and up to 1978, you got a hearing for a suspension only if it exceeded 30 days.
  • Thanks to the CSRA, unionized civil servants today have a right to binding arbitration. This poster states in a footnote that even though arbitration may be invoked by employees in a collective bargaining unit, the result is only advisory to the agency.

And now, for the procedural choices. If the Navy reprimanded an employee or suspended him for 30 days or fewer, the employee had an appeal choice to make between two options:

  1. A hearing before the Commanding Officer (CO) (facility head for other agencies) followed by a written decision, or
  2. A procedural review for suspensions to a Civil Service Commission (CSC) regional office and then another procedural review by the CSC Board of Appeals and Review. Written decisions at both levels, but no hearings. CSC was the precursor oversight agency before MSPB took over in 1978.

If the Navy invoked a longer suspension, a reduction in rank or compensation, furloughed, or fired the employee, the employee had an appeal choice between two options:

  1. In the Navy (with parallel procedures in other agencies), the employee had a right to a hearing before the CO, followed by a written decision. (Unionized employees could substitute arbitration at this step.) That decision could be appealed to the Secretary of the Navy, with no hearing, just a final written decision. As an alternative to the Secretary of the Navy’s review, the employee could take the CO’s decision to CSC, as below.
  2. As an alternative to the CO’s review, above, or after the employee invoked the CO’s review and received a decision, the employee could appeal to the CSC regional office where he would get a hearing and a written decision. Unlike the CSC review of shorter suspensions that were just on the procedures, these reviews were of the merits of the action. Either the employee or the agency could challenge the decision of the CSC regional office to the CSC Board of Appeals and Review. That review level did not provide for a hearing, but it did provide for a final written decision.

Compare these old appeals procedures to today’s procedures provided for by the CSRA and you will see three huge philosophical shifts that occurred:

  • Binding arbitration! Think about that. The federal government (aka, the king) was yielding its right to decide who worked for it and to award backpay and attorney fees to an unknown, untested, outside entity widely believed to benefit from setting aside disciplinary actions. For no other reason, if I were a federal employee, I would form or join a collective bargaining unit just to get this benefit.
  • Judicial review! Not only was the power of the executive branch being diminished by the implementation of binding arbitration, the CSRA provided that final review of serious adverse actions was vested not with the President via the heads of the federal agencies, but with the courts. Unlike decisions being made within the executive branch, court decisions are not all that concerned about what makes for an effective government. Judicial decisions interpret the law. The negative practical effects of those legal decisions, the court leaves up to Congress to fix.
  • Representation! Although some agencies allowed for representation in the appeals process in bygone times, the only alternative in which representation was guaranteed was in the advisory arbitration procedure. When appealing to the CSC, representatives were sometimes tolerated, although the appellant was given no explicit rights to representation. Under the CSRA, employees have statutory rights to be represented in any adverse action. With representation soon came discovery and trial-like administrative hearings, developments that have evolved too often into tools for the coercion of agencies.

These days, an agency has to not only decide to fire a bad employee, it must be ready to commit the legal resources and management time necessary to defend that decision. It’s easy to see why some managers choose to avoid holding bad employees accountable through adverse actions given the high costs of defending those decisions, even when they are valid decisions for doing so.

So now you know what it used to be like. Good old days, bad old days … you get to decide. In comparison, we have the current days, built on the philosophical decisions made by Congress in 1978. Most importantly, though, we have the days yet to come. There’s significant effort afoot to reduce the power of unions in the civil service. Congress has already made it easier to fire employees at the VA, and is considering language to expand that legislation to the entire executive branch. At least a couple of members of Congress would replace the federal civil service with about two million employees at will. (Can you say “patronage,” boys and girls?)

It’s good to remember the past. It’s essential to know the present. It’s historically vital to pay attention to what will be happening in the future. Wiley@FELTG.com

Tips from the Other Side, Part 11

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By Meghan Droste November 14, 2018

Parties in EEO cases have to make many decisions throughout the process — from the complainant deciding at the outset whether to remain anonymous during the counseling period to the agency deciding whether to accept or reject an administrative judge’s findings.  One of the earliest decisions for an agency is whether to accept a complainant’s claims for investigation. In my experience, the answer is usually yes. The agency will accept most, if not all, of the claims and the complaint moves forward. Sometimes, however, an agency will decide to dismiss an entire complaint at the beginning for failing to state a claim.  While the EEOC’s regulations require agencies to do so when appropriate, this decision has the potential to trip up an agency because it can lead to inappropriate weighing the merits of the complaint.

Two recent decisions from the Commission illustrate potential pitfalls in dismissing a complaint for failure to state a claim. In Vickey S. v. U.S. Postal Service, EEOC App. No. 012018055 (Aug. 15, 2018), the complainant asserted that she felt forced to resign when she experienced retaliation for speaking with a union steward, and when her supervisor slammed keys down in front of her, required her to drive in a vehicle with no heat, and threatened to remove her; the complainant alleged that all of these incidents occurred after she notified her supervisor that she was pregnant. The agency dismissed the claim, finding that the complainant was not aggrieved and the incidents were not sufficiently severe or pervasive. The Commission reversed, as it often does when an agency determines at such an early stage that a claim is not sufficiently severe or pervasive.

In Mack R. v. Department of Agriculture, EEOC App. No. 0120181607 (Aug. 3, 2018), the complainant alleged the agency discriminated against him when it issued a Letter of Warning (LOW) to him.  The LOW included a statement that the agency would not place it in the complainant’s official personnel file. As a result, the agency dismissed the complaint, finding that it did not state a claim because the complainant had not articulated a harm or loss.  In its decision reversing the decision, the Commission noted that if the agency had reduced the LOW to a discussion and expunged the LOW from the complainant’s record there would be no harm. As the agency did not do so, and the LOW still existed in the agency’s files, albeit not in the complainant’s OPF, the complainant could allege that he suffered a harm or loss.

While agencies certainly have an obligation to dismiss complaints that do not state a claim, such as claims that allege violations of laws that are not under the EEOC’s jurisdiction, I recommend erring on the side of caution when the concern is not that the complaint could not possibly state a claim, and instead that it could not state a strong claim. Droste@FELTG.com

Take a Deep Breath … Relax: Stress and Mindfulness in the Workplace

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By Dan Gephart, November 14, 2018

Is everybody stressed out at work, or does it just seem that way? Why is everybody so stressed? What can we do about this stress? Why do I keep asking questions about stress? Are all of these questions STRESSING you out?

We actually know why people are stressed in the workplace thanks to the American Institute of Stress. Workload issues (45%), people issues (28%), juggling work and family life (20%), and lack of job security (6%) are the leading reasons.

And we know that stress leads to increased workplace accidents, absenteeism, reduced productivity and even workplace violence, as FELTG President Bill Wiley discussed in a recent FELTG News Flash.

And with the holiday season in full swing starting next week, we’re about to hit the most wonderfully stressful time of the year.  What can we do to tame all this workplace stress?

I reached out to the amazing Phillis Morgan, founder of Resilient at Work. I was fortunate enough to edit a book on labor relations that Phillis wrote a few years ago. Phillis is a former federal labor and employment lawyer who worked with the departments of Homeland Security, Justice, and Defense, and with conflict-riddled environments in Afghanistan, Uganda, and Nepal.  For her advisory work in Afghanistan, Phillis was awarded the NATO Service Medal, Secretary of Defense Medal for the Global War on Terrorism, and the Joint Civilian Service Achievement Award.

Earlier this year, she wrote an article on “Fierce Leadership” for a Federal Manager Association publication. I suggest you track it down.

DG: How does anxiety impact performance, particularly for federal managers?

PM: Anxiety and stress are of significant concern for American employees in general, and certainly for managers in the federal work space. Workplace stress and anxiety are related, multi-faceted issues that increasingly are of huge concern to employers and society at large. Anxiety has both a psychological and physical dimension. According to the American Psychological Association, anxiety is an emotion characterized by feelings of tension, worried thoughts and physical changes like increased blood pressure.

Stress is the emotional and physiological response to a trigger. In both cases, our perceptions of the external event make a big difference in whether we regard the event as anxiety or stress-inducing. Not all stress is “bad,” and a healthy level of stress can contribute to optimum performance. For example, a manager can interpret a tight deadline as a positively motivating challenge, producing a healthy stress response. A new project where the learning curve is high can be interpreted as a positively stressful event or a negative one.  Unfortunately, what managers and other employees are experiencing today, and have for some time, are critical and escalating levels of workplace stress.

DG: What suggestions do you have for managers and supervisors who are feeling overwhelmed?

PM: The research is clear that the most stressful type of work is that which values excessive demands and pressures that are not matched to workers’ knowledge and abilities, where there is little opportunity to exercise any choice or control, and where there is little support from others. In fact, a gap between control versus demands is associated with increased rates of heart attack, hypertension and other disorders.

The National Institute for Occupational Safety and Health (NIOSH) recommends that any serious stress reduction program include an effort to remove or reduce the sources of stress at work, such as job redesign or organizational changes, not just manage stress levels on an individual basis.

This view is consistent with the findings of Stanford professor Jeffrey Pfeffer in his latest book titled, “Dying for a Paycheck.”  Pfeffer’s central argument in the book – like NIOSH’s – is that employers need to focus more on those management practices that are leading to substantial health issues in the first place, practices such as layoffs, job insecurity, toxic cultures and long hours.

So, that’s the place to start: Managers and supervisors should turn inward to examine the organizational and managerial policies and practices they have which may be contributing to the problem, and look for ways to redesign them. At the same time, managers and supervisors can take steps to manage their stress and improve their overall well-being.  Here are some strategies that the research demonstrates are the most effective in combating stress and a sense of overwhelm:

Awareness. This includes increasing awareness of your stressful triggers and your responses to them. This is also known as mindfulness.

Reframing the problem or situation. What is the story you are telling yourself about the situation? Is it really a problem? Is it really as disastrous as the story you are spinning?  Can you reframe it in a way that doesn’t seem so overwhelming or intractable?

Task management. Can you delegate any part of the task? Can you break it down into more management chunks?

Exercise. It increases the production of endorphins, (your brain’s feel-good neurotransmitters), improves mood, is relaxing, reduces the symptoms associated with mild depression and anxiety, and can improve sleep.

Meditation. Calming meditation practices such as sitting meditation, moving meditation, (yoga), or breathing exercises promote the body’s relaxation response, groundedness, and resilience.

Get some support. Reach out to, and accept help from, trusted friends and family members. Contact the employee assistance program (EAP) for further guidance and counseling, and referral to mental health professionals, if needed.

DG: Mindfulness is not a widely accepted practice in the workplace. While that’s changing, there are still a lot of people, including supervisors, who don’t take the topic seriously. Do you still deal with negative bias about the term when doing training? And how do you deal with it?

 PM: Many years ago when I first tried introducing mindfulness to workplaces, employers thought it was too woo woo and there was significant reluctance. There’s been a sea change since then with mindfulness becoming much better accepted as a management and leadership strategy.  A client who is a manager at one of the larger agencies suggested I start with the science behind how mindfulness works and that’s what I do, and it really resonates with managers. I’ve been studying and working with these practices for 15 years so for me, personally, I like relating to the practices from a more intuitive or less heavily intellectual approach. Yet, I can understand that for someone who is unfamiliar with mindfulness, combined with perhaps the myths surrounding it, entering from a science gateway is more comfortable. It’s really not a problem because the science is there, supporting what people have been experiencing as the benefits of mindfulness for thousands of years. However a manager or supervisor wants to orient to the subject, there is room. Gephart@FELTG.com

OPM Clarifies the No-Clean-Record Executive Order Provision, Part 2

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By William Wiley, November 6, 2018

As we discussed last week, 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. There are several problems with that new limitation. On October 10, OPM issued “Interpretative Guidance” to address one of the problems.

That problem is that the EO left no room for exceptions. When a document was placed in the employee’s personnel record, it could not be removed as part of an agreement with the employee. No exceptions. Well, upon reflection, OPM advises us that there are indeed two exceptions to this iron-clad no-clean-record rule:

Corrective Action Based on Discovery of Agency Error  

Section 5 requirements should not be construed to prevent agencies from taking corrective action should it come to light, including during or after the issuance of an adverse personnel action, that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error.

Corrective Action Based on Discovery of Material Information Prior to Final Agency Action

When persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action.

Practitioners on both sides have expressed relief at OPM’s providing exceptions to the EO. You see, every practitioner we’ve spoken with – union or management, attorney or HR specialist – would like to be able to settle cases by agreeing to a clean record. An analogy to the criminal justice system helps us understand the gravity of the EO’s restrictions. Just think what it would be like in the judicial system if charged individuals could not take a plea bargain. These two provisions give at least a little ground for the practitioner to stand when arguing that a document should be removed from the employee’s e-OPF. Besides, these agreements have to be self-reported to OPM annually. There is no oversight to this process. We all learned in elementary school that we get higher grades when we grade our own papers.

At the same time, the EOs’ restriction and OPM’s “clarification” really do not make a lot of practical sense in some ways:

  • The EO says that adverse documents may not be removed from the “employee’s official personnel records.” The only record that meets that definition is the employee’s Official Personnel File, aka the e-OPF. That’s the only employee file that travels everywhere with the individual and lasts forever, into retirement and beyond, perhaps into heaven or hell for all we know, amen.
  • Agencies sometimes maintain separate Employee Relations files or Discipline files. However, strictly speaking, those are not an employee’s “personnel records” because they stay with the agency. They do not follow the employee as he moves from one agency to another. They are “agency” files, not an employee’s “official personnel record.”
  • There are three documents created when an agency fires an employee:
    1. Notice of proposed removal
    2. Decision to remove
    3. SF-50 that effectuates the decision to remove
  • Only the third document is routinely placed into the e-OPF. The first two, if retained at all, are retained in files in human resources. Therefore, there is good argument that the EO restricts agencies from removing an SF-50 from the employee’s e-OPF, but does not affect the retention or deletion of the other two documents: the proposal and decision.

OPM’s clarification, however, seems to take a broader view. It talks about prohibiting the removal of documents in a “personnel file,” not just the employee’s official personnel records. Does that mean that the agency is prohibited from deleting the proposal and decision memos even if an SF-50 is never generated (because the employee resigns)? Who knows?

Separately, both the EO and the OPM memo refer to prohibiting an agency from removing these documents in only three situations:

  1. In response to an employee complaint,
  2. When settling an appeal or grievance initiated by the employee, or
  3. Resolving an employee-initiated action.

That leaves open the question: If there is no employee-initiated complaint/grievance/appeal and the employee simply asks that the documents be removed, does the EO prohibit removal in that situation?

Bottom line: The OPM memo gives the agency a reason to remove documents in a certain limited situation which the EO did not. However, this whole thing is still a mess. Agencies are all over the place interpreting what it means. Gee, don’t we wish that there was a tiny little training company who could provide better guidance than what we have so far? Only time will tell if there is. Wiley@FELTG.com

OPM Clarifies the No-Clean-Record Executive Order Provision

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By William Wiley, October 30, 2018

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. As background, here’s how life works in the federal workplace when it comes to taking adverse actions against employees:

1 – The agency proposes, then decides to implement an adverse action … say, a removal.

2 – The employee exercises his right to challenge that removal by filing an appeal, complaint, or grievance.

3 – Neither the employee nor the agency really wants to go through the appeal/complaint/grievance process. These procedures are expensive, time-consuming, lengthy, confrontational, and of uncertain outcome for both sides. Therefore, both management and the (former) employee have a strong incentive to settle the matter without litigation.

4 – Employees often just want to get on with their lives. They really don’t want to return to the agency that fired them. Agencies don’t really care what happens to the employee after he is gone, they just want him gone, never to return.

5 – Employees perceive that they will have a challenge getting on with their lives if it is documented in their official personnel file (OPF or e-OPF) that they have been fired. Therefore, as part of a settlement negotiation, the employee will ask that the SF-50 personnel form documenting his removal be removed from his e-OPF. Hence, the term “clean record.”

6 – Agencies don’t care if the employee’s record is clean. They know him and he is never getting rehired at that agency regardless of what’s in his e-OPF. If another agency is stupid enough to hire the employee without calling the previous-employing agency to check up on the employee’s work history, things not necessarily in the e-OPF, then that’s their problem. Agreeing to provide a clean record is a powerful bargaining chip that agencies have in settlement discussions because, in the agency’s opinion, they cost the agency nothing.

According to the recent EO, this widespread practice is bad for government. The belief appears to be that somehow by keeping this adverse information out of the e-OPF, future agency employers are disadvantaged. The future employer might hire the formerly fired individual without knowing about his previous bad work history. So, the EO requires that this practice be abandoned. Section 5 of Executive Order 13839 of May 25, 2018, Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles, provides as follows:

Sec. 5. Ensuring Integrity of Personnel Files. Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.

Well, even if the principle behind the EO is a good one, the practical reality undermines the requirements of no-clean-record for one simple reason: HIRING OFFICIALS DO NOT ROUTINELY REVIEW AN APPLICANT’S e-OPF DURING THE HIRING PROCESS. Whether the SF-50 documenting a prior removal is in the record or not, it doesn’t matter. The application form itself requires the applicant to disclose any separations from previous employment under adverse conditions. That requires the applicant to disclose separations resulting from settlements with other government agencies as well as separations from private sector employers. Lying on an application for government employment is a criminal violation and can result in jail time for the applicant. The cleanliness, or lack thereof, of the e-OPF is an exceedingly minor matter.

The result of the EO is that a valuable bargaining tool available for agencies has been taken away, with very little resulting value for the government by the iron-clad ban on clean record settlements. Whoever conceived of Section 5 might be onto something worth pursuing, but the approach taken by the EO reveals a lack of practical understanding of the federal hiring process.

On October 19, OPM stepped into the fray by issuing an “Interpretative Guidance” memo to help agencies deal with the restrictions of Section 5. Unfortunately, for many of us front-line practitioners, while the memo giveth, it also taketh away. We discuss that issue in a separate FELTG article.

Isn’t this crazy? Here at FELTG, we’re just a tiny little training company, full of contractors just trying to make a living. Yet we have to help you wonderful civil service law practitioners understand what the White House is really trying to do. Geez, I hope we get this right. Wiley@FELTG.com

Administrative Juries: Love Them or Hate Them?

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By William Wiley, October 23, 2018

In a previous article, we laid out an alternative dispute resolution mechanism that employees could opt for if offered the option by management. Unlike the traditional ADR process of mediation, this form of ADR requires that the employee waive other rights of redress and resolves the matter permanently at its terminus. We called this procedure an Administrative Jury and promised you a discussion of its pros and cons in a later article. Well, this is that later article.

Instead of a pro/con approach, we’ll analyze the Administrative Jury option from a love/hate approach. These days if you watch cable TV, you will recognize that love/hate has become a very standard way of viewing life these days.

Lovers – There are some groups that are going to love Administrative Juries as an option to the standard redress systems:

  • Employees who want a prompt resolution to workplace disputes. Employees who believe that they have been mistreated will opt for juries to get a quick day in court. Sometimes employees believe that the whole management structure in an agency is a coven of witches and devils. By giving the employee a chance to be heard by a group of coworkers, the grieving employee is bypassing those evil managers and hopefully getting a more neutral, perhaps even employee-biased, decision.
  • Managers who want a prompt resolution to workplace disputes. A pending discrimination complaint against a supervisor can adversely affect the supervisor for years. The Sword of Damocles is a good analogy. It’s like a splinter in your foot until you finally get it out. No more coerced mediation or constructive apologies. No more depositions and responding to document demands. No more being cross-examined by someone trained to make you look like a racist idiot. You get in, you make your best case, and you rest easy and early knowing that you’re going to win more jury decisions than you’re going to lose.
  • Employees and managers who don’t want to spend a lot of money. Years ago, GAO estimated that the cost to the government of an MSPB appeal was about $100,000 IF the removal was upheld. Senior counsel in a big DC law firm can charge above $800 per hour to represent an individual in a complaint or appeal. For some higher ups, that’s not a lot of money, but it is for those lower in the pay scales, the ones that need the help the most.
  • Why coworkers? Because an Administrative Jury is the ultimate in “employee engagement.” Give employees the chance to help decide who gets to work at the agency and you have empowered them to have a significant impact on their daily lives. No longer are they just on the receiving end of whatever it is management wants. You are treating them as adults who have a joint responsibility with management to make the organization function as it’s supposed to function.

Haters – There are other groups who stand to take advantage of the current system and would not want to see anything replace it:

  • Private sector employment lawyers, the ones who make a good living representing employees in the traditional redress systems. They provide a service in which their income is based on how long it takes them to provide counsel to a client. They can still have an income in an Administrative Jury system, but it’s not going to provide enough income to buy a new Tesla every year.
  • Attorneys on both sides who believe that their side is always right, and if they just do enough discovery, examine enough witnesses, and file scintillating briefs written mostly in Latin, they will be victorious. These folks do not subscribe to the old maximum, “Don’t let the perfect defeat the good enough.” They demand that every rock be overturned and will take a case all the way to the Supreme Court to prove to the rest of the world that they are the smartest, more righteous litigant in the case. They cannot accept that a system that produces a good-enough answer quickly can be better for America than a system that produces the “right” answer every time.
  • Employees and managers who believe that they need to punish the other side by dragging it through traditional litigation. Tell me you don’t know employees who intentionally file baseless complaints to coerce management into something, and I will tell you that you haven’t had much experience in this business. Fortunately, these folks are the exception, but they still exist. And they would never opt for a quick resolution via the jury route when they can cause great suffering and pain through traditional redress procedures. They don’t want an answer, they want a fight.

So, there you have it. In three brief articles, a system that could improve the civil service greatly. Hopefully someday someone in a position of power will give this approach a trial. That someone could be you. Pick a component of your organization and set up this option. Try it for a year or so. Have a neutral third party evaluate the results. Then tell the rest of the world how it worked out. Did you know that some of the high-tech companies out here in Silicon Valley near where I work give an award every quarter to the internal organizations who try something outside the box, and fail? They see the value in trying something new even though there is a chance for failure.

If you’re happy with the EEO complaint system we have now, if you look forward to being attacked at an MSPB hearing, if you have nothing better to do in your job other than deal with workplace disputes, then forget these three articles. However, if you believe that there just might be a batter way to run the government, here’s your procedure and now’s your chance. Be brave. Grab the gold ring. And most of all, have fun doing something new. Wiley@FELTG.com

Why Not an Administrative Jury? (Part 2)

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By William Wiley, October 17, 2018

This is the second part of a three-part series.

In a previous article, we explained how the American jury system could be used to demonstrate the differences among three standards of legally required proof:

  • Beyond a Reasonable Doubt: 12 out of 12 jurors must agree (used in criminal cases).
  • Preponderant evidence: 7 out of 12 jurors must agree (used in misconduct removals).
  • Substantial evidence: 4 out of 12 jurors must agree; maybe even just 3 (used in performance removals).

Then, we teased that perhaps this concept could be used to build an alternative dispute system, a system to replace the tedious grievance/appeals/complaint/mediation processes now provided to employees by law or regulation. There are no normal people in the world who think that these processes are perfect, or that they make for a great way to deal with disputes in the federal workplace. You know how I know that? Because that’s how I define normal. If you think the existing systems are wonderful, you are not normal.

So how could this jury-evidence analogy work to be the basis for a fair expeditious system to resolve employee-initiated disputes? We are so glad that you asked. Here are the details of an Administrative Jury procedure:

1 – Workplace disputes arise when management takes or fails to take an action that an employee thinks is wrong. An “action,” for example, can be discipline, a reassignment, or a failure to promote; just about anything that can now be the subject of a discrimination complaint, grievance, or appeal.

2 – Currently, when an employee decides to dispute a management action, he is given access to one of several regulatory-defined redress systems. Those systems usually involve many steps of review, take a long time to play out, and cost taxpayers and the employee basket-loads of money.

3 – As an alternative to these procedures, management could offer employees who want to dispute an action the option of invoking resolution of the complaint by an Administrative Jury. This would be an option for management. Administrative Juries can occur only through mutual consent.

4 – If the employee selects the option of an Administrative Jury, the agency would then convene the jury by selecting 12 agency employees who have previously volunteered and trained to serve in the jury pool. The jurors would be selected at random, except that none could come from the employee’s work unit.

  • “But, Bill, won’t that cost a lot of money? Some of those coworkers might come from far away and the agency would have to pay all that per diem.”
  • Whoever asked this question clearly has no idea what it costs the agency to go through the traditional processes.
  • Travel and per diem expenses for jury members is a drop in the financial bucket compared to the costs of traditional litigation.

5 – The jury convenes in a conference room at 9:00 AM. Each side, management and the employee, gets 90 minutes to speak to the jury.

6 – The party speaking first is the party that has the burden of proof in the dispute:

  • Discipline – Management goes first.
  • Discrimination Complaint – The employee goes first.

7 – Each side can have two Presenters; e.g.

  • In a discrimination complaint, the two Presenters for the employee might be the employee and his attorney. Or, perhaps two witnesses who observed the discriminatory event and who can tell their story to the jury.
  • In a removal action, the agency might choose to have the proposing and deciding officials as Presenters. Or, a human resources specialist and a witness.
  • The parties can have more than two Presenters by mutual consent.

8 – The Presenters speak directly to the jury.

  • There’s no direct nor cross-examination.
  • Presenters can provide documents to the jury members.
  • The jurors can ask questions of the Presenters.

9 – The parties are done by noon and excused. After lunch, the jurors discuss and decide the outcome of the dispute.

  • For a discrimination complaint to be resolved in favor of the employee, seven or more jurors have to find discrimination.
  • For discipline to be upheld, seven or more jurors have to vote to uphold the discipline
  • For a performance removal to be upheld, four or more jurors have to find removal warranted.

10 – The jurors reach a decision sometime that afternoon, the parties are informed before COB, and the next day, we are back to running a federal agency.

“But, Bill, there must be pros and cons to the Administrative Jury process. Why haven’t you discussed those yet?” Because, dummy, we like to keep you coming back for more. Wiley@FELTG.com

Stay tuned to FELTG for the third installment in our Administrative Jury series.  

The #MeToo Movement by the Numbers

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By Meghan Droste October 17, 2018

This year, I have logged thousands of miles traveling to various parts of the US and Japan to teach courses on several different topics.  One area that I have covered in nearly every course is sexual harassment — what it is, when an employer is liable for it, and what agencies can do to address and prevent it. I am frequently asked if there has been a change in the number of reports of harassment or the number of cases alleging sexual harassment since the rise the #MeToo movement last October. Until now, I have had to answer the question with anecdotal evidence from my practice and stories of others in the field. It has generally felt that more people are willing and able to come forward now to report what has happened to them and to press employers to hold harassers accountable.

The EEOC recently released numbers that back up the general feeling that there are more reports of sexual harassment. As the Commission notes, in the past year “the country heard story after story of sexual harassment that just one year before might never have been told.” In What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment, the Commission provides statistics from Fiscal Year 2018 that demonstrate just how much the legal landscape has changed.

Although the report does not include numbers from the federal sector, we can see a noticeable change in the numbers of charges and lawsuits filed.  The Commission observed a 12 percent increase in the number of sexual harassment charges filed in the private sector.  There was also a 50 percent increase in the number of sexual harassment lawsuits the EEOC filed. Sexual harassment cases made up more than 60 percent of the cases the Commission filed in FY18.  The Commission also recovered almost $70 million for victims of sexual harassment through litigation and administrative enforcement.

The public’s interest in information regarding sexual harassment also increased during the past fiscal year. The Commission reported that the hits on the sexual harassment page of its website more than doubled. Requests for training by the EEOC also increased across the country [Editor’s Note: as has also happened at FELTG.]

It is still too early to tell what the lasting impact of the #MeToo movement will be. It is encouraging, however, to see that in just the last 12 months, it has made a difference. You can read more about the FY18 numbers on the EEOC website. The EEOC has also issued press releases about several of the harassment suits it has filed this year, which you can read here and here. Droste@FELTG.com

The Danger of a Bad Investigation

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By Deborah Hopkins, October 19, 2018

Have you ever conducted an administrative investigation? Depending on the allegations at issue, even if you haven’t yet, you might one day find yourself in a Sherlock Holmes hat and cape, tasked with discovering the truth.

You have the best chance of doing so if your job title is any of the following:

  • HR specialist
  • Law enforcement officer
  • Attorneys
  • Contract investigator
  • EEO specialist
  • IG or professional responsibility staff
  • Line manager

The characteristics of a legally sufficient investigation are that the investigation be prompt and objective; that all relevant witnesses be interviewed, particularly when credibility is at issue; that all relevant documents are reviewed; that the investigator follows up as information is collected; and that a fair analysis of the facts is given. California Labor & Employment Law Review, Vol. 28, No. 6, pp. 1-7.

Objectivity is really key here; if the investigator shows any bias, it undermines the entire investigation. One of the worst things that can happen to both an agency and an employee, is for an investigator to conduct a bad investigation. Whether it’s a misconduct investigation, an EEO investigation, a reprisal investigation, or another type, the results can cost the agency anything from a minor sanction to a sizeable settlement to default judgment – and it can cost the employee years of waiting for a final answer.

One of the lead cases we discuss in our Workplace Investigations Week training (next held in Washington, DC, November 5-9) is Whitmore v. Labor, 680 F.3d 1353 (Fed. Cir. 2012). In this case, the employee was fired. The agency said it was for misconduct. Mr. Whitmore alleged it was in reprisal for his protected whistleblowing.  The Department of Labor brought in an investigator who from the start showed extreme bias against the appellant. You should read the case for yourself (or come to our class) if you want the details, but among the highlights – er, lowlights – the investigator refused to interview any of the appellant’s witnesses, and also sent an email to a DOL official saying he would help the agency “kick [the whistleblower’s] ass this time.” It was such a bad investigation the agency ended up settling the case for $820,000 rather than go to a rehearing. Ouch.

In the discrimination world, EEOC has seen a number of bad investigations. Recently, in a complaint of disability and reprisal discrimination, the EEO investigator doing the investigation did not interview any of the witnesses identified by the complainant, which the Commission noted unfairly restricted the complainant’s ability to prove discrimination (ya think?). The Commission also said it would not have been unduly burdensome for the investigator to talk to those six witnesses (again, ya think?). There was no investigation into the complainant’s statement that he was not allowed to take annual leave in lieu of sick leave for his disability-related issues. This, said the Commission, was articulation of a denial of a reasonable accommodation that the investigator should have addressed, but did not. This case got remanded to the agency for a supplemental investigation.  Julius P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162827 (Mar. 6, 2018).

The complainant’s first contact with an EEO counselor was on March 2, 2015, and the new investigator is presumably only talking to his witnesses and investigating the denial of reasonable accommodation allegations now, coming up on four years after the fact. It’s unfortunate to all parties involved that years later, this matter in Julius P. is still not resolved, and all because of a bad investigation. Need more? Come to the classes. We’re here to help. Hopkins@FELTG.com