It’s Not Too Late to Make a Difference

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By William Wiley, July 25, 2017

In last week’s newsletter, we described OPM’s lack of concern for your life and the lives of those with whom you work. It has demonstrated this insensitivity by issuing a proposed rule that would effectively require that an agency keep a fired employee in the workplace for up to three weeks after the decision to fire him has been made. Stressed out people sometimes become violent. We cannot ignore the fact that individuals who are fired are under significant stress. Requiring fired civil servants to continue to work after their removals have been proposed and even decided is an unnecessarily dangerous policy.

You can do something about this. Whoever you are wherever you are, if you can access an email account, you can tell OPM what you think: pay-leave-policy@opm.gov.  When submitting comments via this email address, place this in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section of the regulations on which you are providing comments. The proposed regulations can be found at  https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.  You have until August 14 to act to save your life.

Here’s our latest FELTG comment, if you’re looking for a tone and format:

Dear OPM-

We have previously commented that this proposed rule should be modified so that agencies are encouraged to use Notice Leave in every case in which an employee’s removal is proposed, and that the regulations should be rewritten so that it is easy for this to be done. As drafted in the proposal, it would be exceedingly difficult for an agency to implement Notice Leave. The following rationale is in further support of my previous comment.

When drafting the Civil Service Reform Act of 1978, Congress expressed no intent that an employee whose removal is proposed be retained in a work status during the notice period. In fact, when considering the requirements of the law, it makes no sense. From the day that the supervisor notifies the employee that his removal is being proposed for misconduct, the employee need be given no more than seven days to respond. 5 USC 7513(b)(2).  That means that the deciding official can issue a decision on the proposed removal as early as day eight, after the close of the minimum response period.

It makes absolutely no sense that an agency be required to keep an employee in the workplace after a final decision has been made to fire him. These are individuals who have engaged in misconduct so bad that they deserve to be terminated. Or, they have such significant medical infirmities that they cannot perform the essential functions of their position. It defies any logic that individuals like this should be directed to report to work for 22 days after the decision has been made that they should not be employed. So why did Congress mandate a 30-day notice period if it makes no sense to keep someone in the workplace after the decision has been made to fire them?

I know the answer. And I know it because I am old. I was in the business of federal employment law when this legislation was being developed and debated in 1978. I heard Scotty Campbell, former Civil Service Commissioner and driving force behind the structure of the Reform Act, say that the extra 30 days of pay was to ease the transition of the employee out of government employment; i.e., to give him a chance to find another job. In other words, it was a way of providing something akin to severance pay to the employee as he was being removed. The purpose of the notice period is to provide money to the employee, not to try to get work from the employee.

The law says, “at least 30 days’ advance written notice.” Had Congress intended that the notice period be completed while the employee was in the workplace after the decision was made to fire him, it would have said, “at least 30 days’ advance written notice, during which the employee will remain in the workplace.” It is my opinion that Congress did not add this language because it could not conceive that anyone would think it a good idea to retain a fired employee in a federal worksite for three weeks after the decision had been made to fire him.

Apparently, Congress was mistaken.

The draft rule should be rewritten to empower front line managers to protect the federal workplace once an employee’s removal has been proposed. The rule should be amended in part as follows:

5 CFR 630.1505 Administration of Notice Leave

Whenever an agency proposes the removal of an employee, normally it shall place the employee on Notice Leave. Retaining such an employee in a work status jeopardizes the government’s interest in the safety and integrity of the federal workplace. The authority for imposing Notice Leave should be delegated to the lowest reasonable level within the agency.

Respectfully submitted for your consideration. Wiley@FELTG.com

Is OFO Trying to Cut Through its Backlog with Shorter Decisions?

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By Deryn Sumner, July 19, 2017

Our colleague and friend Ernie Hadley has preached for years that the EEOC’s Office of Federal Operations could get more decisions out in a timely manner if it stopped issuing multipage decisions that ultimately concluded with: we agree with the Agency that there’s no evidence of discrimination in this case. As someone who at least skims every one of the thousands of decisions issued by the Commission every year, I agree wholeheartedly with Ernie.

There are three main categories of Commission decisions: (1) cases where discrimination was actually found, and there’s a useful discussion of the facts as applied to the law and an analysis that assists us in our mission to figure out what constitutes evidence of discrimination and what remedies are available when it occurs; (2) cases where the agency messed up in dismissing a formal complaint that shouldn’t have been dismissed, and the Commission has to reinstate the case and remand it back to the agency for processing, and (3) cases where the EEOC is affirming a FAD or final action from the agency that no discrimination occurred.  (And of course, let’s not forget the hundreds of decisions every year denying requests for reconsideration filed by either side in an attempt to delay the inevitable.)

The vast majority of decisions issued by the EEOC fall into that third category.  Why?  Well, employment law is no different than any other area of civil litigation in that most cases settle, especially before getting to the appellate stage.  And yes, some employees who aren’t able to show that discrimination occurred file complaints.  At least as a parting gift, these employees received a five to seven page decision recapping the procedural history and facts of their cases, the appropriate legal standard, and a brief analysis of why they couldn’t prove their case.  Beneficial, perhaps, for the employee to understand what the Commission’s reasoning was, but a lot to slog through for the rest of us.

So imagine my surprise when I checked in on the latest OFO decisions to be published on Lexis, only to find a string of cases issued on June 16 (the latest date available as of my deadline to turn in my articles for the July edition of the FELTG newsletter) succinctly affirming final actions.

These decisions still identify the accepted issues, the procedural history, and the applicable legal standards.  Each of these take about a paragraph each.  But then, instead of a lengthy recitation of the facts or extensive discussion of why the administrative judge was correct in issuing summary judgment or in finding no discrimination after a hearing, the Commission simply states this:

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.

The decisions are about three or four pages shorter than we’re used to seeing.  I have no reason to think that the OFO attorneys who write these decisions are spending any less time considering the arguments on appeal and properly determining whether the case was appropriate for summary judgment.  I do hope that these summary decisions allow the Commission to focus more resources on the cases where there is evidence of discrimination.  I have the list of my cases for potential candidates, should anyone at the Commission be interested.   Oh, and if you’d like to see examples of these shorter decisions, see, e.g. Rosemarie G. v. FDIC, Appeal No. 0120151691 (June 16, 2017); Reginald B. v. Dept. of Commerce, Appeal No. 0120170496 (June 16, 2017); Monroe M. v. Dept. of Veterans Affairs, Appeal No. 0120151174 (June 16, 2017).  Sumner@FELTG.com  [Editor’s Note: Hopefully, once MSPB gets operating again, the new members will conspire to do something like this with those overly-long non-precedential decisions some bright mind over there came up with several years ago. Maybe even adopt FLRA’s style of putting all the citations to case law into footnotes where they don’t distract from reading the rationale. There’s just so much room to make our business better and America great again.]

The EEO Supervisor Who Never Heard of a Targeted Disability

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By Deborah Hopkins, July 19, 2017

A few weeks ago, I was talking shop with a colleague, and he mentioned that he’d recently run into an agency EEO supervisor who had never heard the term targeted disability.

“C’mon,” I said, “There’s no way that’s right.”

“Right or wrong, it’s the truth,” replied my colleague.

“Okay,” I said, “Maybe she is at least familiar with the term predictable assessment?”

“Nope,” my colleague said, “Not that either.”

“Ok, how about Schedule A?”

“Negative.”

Holy moly. If an EEO supervisor doesn’t know this stuff, then how many of our readers might not know it either? I think it’s time for a “read and learn” session.

Targeted disabilities are the most severe types of disabilities, and they include:

  • Blindness
  • Deafness
  • Partial and full paralysis
  • Missing extremities
  • Dwarfism
  • Epilepsy
  • Intellectual disabilities
  • Psychiatric disabilities

Individuals with these disabilities typically have the greatest difficulty finding employment, so the federal government places a special emphasis on recruiting, hiring, promoting and retaining people with targeted disabilities.

The related term predictable assessment comes out of 29 CFR § 1630.2(j)(3): the “inherent nature” of certain impairments will “virtually always be found to be a substantial limitation.” Thus, these conditions always rise to the level of disability under the ADA.

Section 501 of the Rehabilitation Act of 1973 charges federal agencies to promote the hiring and retention of individuals with disabilities in two ways:

  1. To be a model employer of individuals with disabilities through use of meaningful affirmative hiring, placement, and advancement opportunities; and
  2. To ensure employment non-discrimination and reasonable accommodation.

Schedule A hiring authority allows agencies to provide job opportunities to individuals with targeted disabilities by appointing qualified individuals to federal jobs non-competitively, thus eliminating the need to post a job opening or certify a certain number of candidates for an open position. Schedule A also allows for hiring readers, interpreters, and personal assistants for employees with severe disabilities as reasonable accommodations.

From a practical perspective, this means that if a candidate with a targeted disability appears to be qualified for a funded vacancy, and the supervisor wishes to hire this individual, the agency does not need to issue a job announcement. But, Schedule A applications can be accepted after the job announcement closes, up until the position is actually offered to someone.

Earlier this year, the EEOC released a final rule, “Affirmative Action for Individuals with Disabilities in Federal Employment.” Beginning in 2018, agencies will be required to incorporate affirmative action into hiring and advancement plans: 12 percent of employees should be people who have disabilities, and 2 percent of employees should have targeted disabilities. Agencies will be required to report their statistics to the EEOC, and will furnish copies of their hiring/promotion plans to EEOC for approval.

This is an important topic that some people seem to have missed. There’s a lot more that goes into Schedule A hiring, and FELTG is holding a webinar on this topic July 20 (that’s tomorrow!), so if you’re interested there’s still time to register. Hopkins@FELTG.com

OPM Doesn’t Care if You are Killed

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By William Wiley, July 19, 2017

Regular readers of our newsletter will remember the celebration we had when Congress created a new type of paid leave status back in December: Notice Leave. The problem we’ve been having for several years has been a conflict between two competing interests:

  1. The interest of not paying employees to not work by putting them on administrative leave for months and years, and
  2. The interest in getting potentially dangerous employees out of the work place where they might kill somebody once their removals are proposed.

Here at FELTG, for nearly 20 years, we have come down on the side of the protection of the government’s workplace by using administrative leave during the 30-day notice period that precedes a removal for misconduct or performance. To us, reducing the opportunity for workplace violence is more important than a few days of administrative leave.

Unfortunately, we don’t get to make the rules. The rule makers at OPM and on Capitol Hill have come down on the side of theoretically protecting the federal fisc by ordering that the use of administrative leave be restricted even if it endangers the lives of federal workers and the public. Yes, you’re reading that correctly. OPM’s regulations for many years have said that normally an employee whose removal has been proposed will remain in his regular job during the notice period.

If we need to explain to you why this is foolish, you must be new. Does anyone REALLY think that the employee is going to produce usable work once notified of his impending removal? Is it REALLY a good idea to allow an about-to-be-fired individual to have 30 days of access to sensitive government documents and personal citizen data? Does anyone REALLY believe that a civil servant who is about to be terminated is not under the biggest stress of his life (and we all know what stress does to making sane decisions)?

Congress’s creation of Notice Leave, we wrote, was the best Christmas present any civil servant could have asked for. Finally, we had a method specifically designed to protect federal employees from getting killed by a stressed-out coworker who has a pending removal over his head. With no limitation on how long Notice Leave could be used, we could, for the first time in history, hand the employee a proposed termination, escort him out the front door and bar him from returning, and still protect his right to receive a salary for the duration of the notice period without using administrative leave.

Well, leave it up to OPM to screw up a perfectly fine opportunity. Rather than taking the new law, concluding that when an employee’s removal is proposed it categorically “jeopardizes the government’s interest” (statutory standard) to keep him in the workplace for 30 days, and issuing a regulation to put that into effect, OPM has taken just the opposite approach. Last week it proposed a regulation that will make it nearly impossible for an agency to protect itself by putting a failed employee on Notice Leave.

Here’s what OPM’s policy should say, according to FELTG:

5 CFR 630.1505 Administration of Notice Leave

  • Whenever an agency proposes the removal of an employee, normally it shall place the employee on Notice Leave. Retaining such an employee in a work status jeopardizes the government’s interest in the safety and integrity of the federal workplace. The authority for imposing Notice Leave should be delegated to the lowest reasonable level within the agency.

Here’s what OPM has proposed otherwise. We’ve restructured the requirements for clarity and emphasis on the ridiculous burden that OPM is creating:

5 CFR 630.1503 – 1506

Prior to placing an employee on notice leave the agency may not establish a categorical policy and must document the following for each incident of notice leave:

(1) The reasons for initial authorization of the notice leave, including the alleged

action(s) of the employee that required issuance of a notice of a proposed adverse action;

(2) The basis for the determination that the employee’s retention in a work status would:

(i) Pose a threat to the employee or others;

(ii) Result in the destruction of evidence relevant to an investigation;

(iii) Result in loss of or damage to Government property; or

(iv) Otherwise jeopardize legitimate Government interests.

(3) An explanation of why any of the following options are not appropriate:

(i) Keeping the employee in a duty status by assigning the employee to

duties in which the employee no longer poses a threat,

(ii) Allowing the employee to voluntarily take leave (paid or unpaid) or paid time off, as appropriate under the rules governing each category of leave or paid time off;

(iii) Carrying the employee in absent without leave status, if the employee is

absent from duty without approval; and

(iv) For an employee subject to a notice period, curtailing the notice period if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, consistent with 5 CFR 752.404(d)(1).

(4) When making the decisions above, the agency must document its consideration of:

(i) The nature and severity of the employee’s exhibited or alleged behavior;

(ii) The nature of the agency’s or employee’s work and the ability of the agency to accomplish its mission; and

(iii) Other impacts of the employee’s continued presence in the workplace

detrimental to legitimate Government interests.

(5) When deciding whether an employee’s presence is detrimental to government interests, the agency must document consideration of whether the employee will pose an unacceptable risk to:

(i) The life, safety, or health of employees, contractors, vendors or visitors to a Federal facility;

(ii) The Government’s physical assets or information systems;

(iii) Personal property;

(iv) Records, including classified, privileged, proprietary, financial or medical records; or

(v) The privacy of the individuals whose data the Government holds in its

systems.

(6) And if documenting the rationale for each particular grant of Notice Leave isn’t enough, the agency also has to document:

(i) The length of the period of notice leave;

(ii) The amount of salary paid to the employee during the period of leave;

(iii) The reasons for authorizing the leave:

(iv) Whether the employee was required to telework under during the period of the investigation, including the reasons for requiring or not requiring the employee to telework; and

(v) The action taken by the agency at the end of the period of leave.

In its preamble to these proposed regulatory changes, OPM opines the reason it is requiring that all other conceivable options short of Notice Leave be exhausted and documented rather than simply implementing Notice Leave commensurate with the proposed removal: during the notice period by avoiding Notice Leave if possible, the agency can “continue to benefit from the employee’s skillset and abilities to further the agency’s mission.” Well, that’s just stupid. Think who these people are who have had their removals proposed. They are almost always civil servants who have:

  1. Already engaged in misconduct so bad that their supervisors have decided, after doing a Douglas factor analysis, that these bad hombres should be fired,
  2. Performed so poorly as to be determined to be unacceptable, given a month or better to improve their performance, and still continue to be unacceptable performers, or
  3. Have such bad medical infirmities that they cannot perform their job.

And OPM wants us to keep these people in the workplace “to continue to benefit from their skillset.” We think that somebody at OPM needs a better skillset if they’re going to be drafting regulations in this area.

Here’s another part of the preamble we just love. OPM says that prior to implementing a period of Notice Leave, the supervisor should consult with their human resources office or general counsel. Well, why? I have held each of those positions in my career. Here at FELTG, we have trained thousands of human resources specialists and agency attorneys over the years. And you know what? We have never, ever met anyone in one of these positions who has been trained in how to predict future violent behavior. I was a psychologist before I became an employment lawyer. Any trained mental health worker who claims that he can predict with certainty whether an individual will engage in future violent behavior is engaging in malpractice.

We know better. We read report after report of workplace killings and see that in many (if not most) of them, the perpetrator had no history of violence or mental disorder, and often was well liked by coworkers. Those of you who have lived around the Beltway might remember the workplace killing that happened several years ago at the Lululemon store in Bethesda. There were two young women involved. When Worker A told Worker B that Worker B’s theft of clothing had to be reported to management, Worker B began stabbing Worker A. While conducting the autopsy, the coroner reported over 300 stab wounds in Worker A’s body.  Without exception, Worker B was described by friends and coworkers as mild-mannered, polite and cheerful, with no history with the police or of violence.

OPM’s draft regulations, by referring the matter to untrained attorneys and human resources practitioners for advice, is taking the decision away from the person in the best position to make the decision: the immediate supervisor. That supervisor also happens to be in a position where she is most likely to be the victim of any workplace violence that results from a proposed removal. Years ago, I had a supervisor-client in an agency who called me in tears. I had advised her to put the employee on administrative leave once she issued the proposed removal. Unfortunately, when she tried to put that in the draft proposal letter, the human resources specialist advising her told her that he “would not let her do that,” that he “could tell who was going to be violent,” and then went back to the HR office where he was safe behind two locked doors.

I have never felt closer to whacking an HR specialist in my life.

We cannot imagine what public good is served by OPM’s placement of these significant limitations on an agency’s authority to impose Notice Leave. It cannot be the saving of tax dollars. The employee gets paid whether at work or on Notice Leave. So that isn’t it.

Maybe it’s the perceived value of having the employee’s work product during the notice period; work product from someone who is either a) medically unfit, b) a proven non-performer, or c) a rule-breaker. With that, let’s play a little mind game:

  • First, based on your experience in the civil service, place some dollar value on the work product you estimate you’re going to get from someone who falls into one of these three categories, after you’ve told him that he probably will be fired within 30 days. Put that number here and call it Value A: $__________.
  • Next, place some dollar value on your life. And the lives of the other employees in the immediate vicinity of your office. And the members of the public wandering around your facility. And the super-secret information maintained by your agency in your data files. And avoiding the disruption to government operations that might be caused by workplace violence. Place that number here: $___________. Now, multiple this last number by a percentage that represents the likelihood, in your opinion, of violence erupting from an employee who gets a proposed removal (e.g., 1%, 5%, 50% … whatever). Put that number here and call it Value B: ________.

If your Value B is larger than your Value A, you will agree with FELTG’s proposed optional regulation that would allow immediate supervisors to impose notice leave with the least constraints possible under the law.

If your Value A is larger than your Value B, you have an exceedingly unique view of life, and you should apply to work at OPM, if you do not already.

OPM! For god’s sake, this is life and death stuff we’re talking about here!

Did you not hear about the coworker murders in the rampage at the Washington Navy Yard not long ago? Are you ignorant about the history of people like Nidal Hasan, the psychiatrist who shot 43 coworkers in a government workplace in 2009? Are you unaware that the Bureau of Labor Statistics says that every week day in America, two people kill a coworker?

These proposed regulations were drafted by someone who either:

  1. Has never spent any time in a federal workplace, or
  2. Doesn’t care that they are putting lives in danger for the sole benefit of … I have no freaking idea.

Here’s a reality check. In our FELTG seminars, this topic often comes up when we are working with a group of supervisors. We have never met a supervisor who thought it was a good idea to hand an employee a proposed removal, then keep the employee in the workplace for another 30 days. Certainly, that would not happen in a private sector company. OPM, if you care at all about the lives of federal employees and do not agree with what we’ve written here, check it out for yourself. Pull together a group of front-line supervisors from agencies throughout government. Ask them two simple questions: “How many of you think it is a good idea to keep an employee at work once his removal is proposed?” Then, “How many of you think that an employee should be removed from the workplace once she receives a proposed removal?” We guarantee you the answers you get will support what we’re saying here.

Here’s another reality check. Congress passes laws that control the civil service. Yet, very few members of Congress have ever worked as civil servants or really know much what it’s like to try to run a federal agency at the front lines. We can’t expect them to appreciate all the nuances of what we are trying to do and what life is really like out here in the trenches.

But we should expect that from OPM. As I understand government, that is the agency that is supposed to take laws passed by Congress and build regulations based on them that actually work, consistent with the flexibilities within the law. OPM has not done that here, and instead is in the process of creating a dangerous workplace that could never have been the intent of Congress when it created Notice Leave. We cannot move toward the goal of increasing the accountability of the civil service if OPM issues regulations that make supervisors fear for their lives when they try to fire a bad employee. That is EXACTLY what these proposed regulations will do.

Your comments are due to OPM by August 14, https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.  Union folk, form the picket lines at 1900 E Street, NW; FELTG will march with you. Email: pay-leave-policy@opm.gov.  When submitting comments via this email address, place in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section(s) of the regulations you are providing comments on.

It’s your life. Decide how much effort you want to put into defending it. Wiley@FELTG.com

Important Development from OFO Regarding Calculation of Compensatory Damages Awards

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By Deryn Sumner, July 19, 2017

The Civil Rights Act of 1991 amended Title VII to, in relevant part here, allow successful complainants to recover compensatory damages for the emotional and physical impacts of workplace discrimination.  The Act placed a cap on how much can be recovered, and employers with more than 500 employees face a maximum payout of $300,000 for compensatory damages.  Once the EEOC’s Office of Federal Operations began considering cases where compensatory damages were available as a remedy a few years later, the Commission developed the framework still in place today: consider the nature, duration, and severity of harm to determine the appropriate award of non-pecuniary compensatory damages, and then make sure that award is not “monstrously excessive” on its own and is consistent with the amount awarded in cases with similar harm.

This formula worked well until more and more time passed since the 1991 effective date and, with inflation, the statutory cap of $300,000 became worth less and less.  Also, those amounts awarded in similar cases started to become less appropriate over time, if the cases relied upon were issued more than a few years prior.  Sure, the complainant in a 2007 case had similar evidence of harm and got $50,000.  Shouldn’t my client in 2017 get more than that given that it’s ten years later?  That argument has been made for years by attorneys for complainants and it finally got a foothold in a decision issued on June 9, 2017.

The Commission exercised its authority to issue a sua sponte decision reopening and reconsidering a prior decision in Lara G. v. USPS, Request No. 0520130618 (June 9, 2017).  Way back in 2009, an administrative judge issued a decision finding the agency subjected the complainant to retaliatory harassment.  Along with other remedies, the administrative judge awarded $100,000 in non-pecuniary compensatory damages.  After the agency issued a final action accepting the finding of retaliation but rejecting the award of remedies, the case came to the Office of Federal Operations on appeal. The complainant argued that the award should be adjusted to reflect present-day dollar value of the precedent cited in support of the award.  In a 2011 decision, the Commission found the administrative judge acted appropriately in awarding $100,000. The complainant then requested reconsideration arguing, “the Commission’s policy of requiring [Administrative] Judges to issue awards consistent with prior Commission cases works an injustice to present-day complainants due to the inflationary devaluation of prior awards.”  In March 2012, the Commission denied the request for reconsideration.

However, after the complainant alleged that the agency failed to fully comply with the Commission’s Order, the case came back to the Office of Federal Operations as part of a Petition for Enforcement.  After that, the Commission notified the parties in October 2013 that it intended to reconsider the case on its own motion.  A mere three and a half years later, the Commission issued its decision and given the importance of its holding, I’m including a block quote of its analysis:

Some courts, when considering whether to reduce compensatory-damage awards, have considered the present-day value of awards in comparable cases. For example, in EEOC v. AIC Security Investigations, Inc., 55 F.3d 1276 (7th Cir. 1995), the court determined that a $50,000 compensatory-damage award was not excessive when compared to prior awards of $40,000 and $35,000. Noting “that those awards were several years ago, and thus the current value of those awards is considerably greater,” the court stated that the “[c]omparability of awards must be adjusted for the changing value of money over time.” Id. at 1286. See also Deloughery v. City of Chicago, 2004 WL 1125897 at 7 (N. D. Ill. 2004) (in decision reducing jury’s $ 250,000 compensatory-damage award to $175,000, court noted that older comparable award “should be converted to current dollars”), aff’d, 422 F.3d 611 (7th Cir. 2005) (district court acted within its discretion where remitted award was sufficiently comparable to awards in other cases in the circuit).

Similarly, when determining an award of non-pecuniary compensatory damages, the Commission may consider the present-day value of comparable awards. Thus, an AJ who is awarding damages should consider the amounts that the Commission awarded in prior cases involving similar injuries and should determine whether circumstances justify a higher or lower award. The AJ should adjust the award upward or downward according to the relative severity of the complainant’s injury. The AJ may then take into consideration the age of the comparable awards and adjust the current award accordingly.

In this case, the AJ determined in October 2009 that Complainant’s injury was comparable to that of a complainant who was awarded $95,000 in September 2003. The AJ awarded Complainant $100,000, which is $5,000 more than the comparable award. It is not clear whether the AJ, in reaching her determination, took into consideration the time that had passed since the $95,000 award. Given the nearly six-year interval between the comparable award and Complainant’s award, we find it appropriate to increase Complainant’s award by an additional $10,000. Therefore, we find that Complainant should receive $110,000.00 in non-pecuniary compensatory damages. Accordingly, we will modify the ordered remedy to reflect this increased award.

So a mere 18 years later, the complainant received an additional $10,000 in non-pecuniary compensatory damages.  Was it worth it to the individual complainant?  Likely not.  However, expect to see this case heavily relied upon by complainants’ counsel in arguing for upward adjustments to compensatory damages awards. Sumner@FELTG.com

Learn to Avoid Unjustified Gambles

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By William Wiley, July 19, 2017

So many questions, there are. This month, we got a good one from a long-time reader about the use of Letters of Warning. The writer was being advised (accompanied by legal citations) that a Letter of Warning was considered as prior discipline by MSPB, although we teach in our fantastic FELTG seminars that it is not.  Here’s our response:

Dear Poorly-Advised FELTG-Constitute:

In each of the three cases cited by your advisor as evidence that a Warning is prior discipline, the letter of warning considered as prior discipline is a “letter of warning in lieu of suspension.” These are effectively suspensions, not simply administrative letters of some type. USPS is the defendant agency in these cases and has wisely bargained for this particular type of punishment in its national labor agreement. MSPB has found these letters to be prior discipline in other agencies besides USPS, but only IF they are developed through agreement with the employee and the employee specifically accepts them as alternative discipline constituting prior discipline for the purpose of progressive discipline. Otherwise, they are referenced in disciplinary letters for establishing notice (Douglas factor 9) and nothing else. They simply are not discipline.

Discipline was defined for us in Bolling v. Air Force, 9 MSPR 335 (1981). In that decision, the Board said that to be countable as discipline for progressive discipline purposes, the instrument must be in writing, stored in a system of agency records such as the OPF, and grievable. Back in 1981, the only widely accepted instrument that did that was the Reprimand. Letters of Caution, Letters of Warning, Letters of Expectation, etc., were used in varying ways by some agencies with many agency policies not allowing them to be grieved, and usually not storing them in the OPF. Therefore, the Reprimand developed universally as the first step in progressive discipline.

Of course, nothing stops an agency from coming up with an instrument, calling it anything it wants to call it (e.g., a Bad Day Memo), defining it as a disciplinary act in a policy statement, and ensuring that it meets the Bolling criteria. However, few if any have done that because there really is no legal benefit to adding to the list of disciplinary tools; Reprimand, Suspension, and then Removal are perfectly adequate for holding employees accountable and sooooo much simpler than trying to deal with poorly defined, confusing, additional discipline tools.

In a related arena, the courts have had to decide whether letters like Warnings and Cautions are “personnel actions” for an individual to be able to claim whistleblower reprisal. Well, sometimes yes and sometimes no, depending on the specific language, not the title of the document. They do not rise to the level of being a personnel action if they only admonish the employee to act in a particular manner, do not accuse her of anything wrong, and do not restrict her behavior. Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015). Otherwise, they do. If a Letter of Warning accuses the employee of misconduct, it is a personnel action for a whistleblower reprisal claim. However, if there is no policy allowing it to be grieved or retained in a file system like the OPF, then it is not discipline.

Isn’t this crazy?

By far, the best approach is to stop doing Warnings, Cautions, Counselings, or anything else that smells like discipline, but may or may not be. They have NO value in progressive discipline and they confuse those who do not know our law. More dangerously, they may inadvertently become something we must defend against as a personnel action for reprisal purposes, all the way through MSPB (discovery, depositions, hearings, petitions for review) to federal court.

Here at FELTG we strongly recommend that you get the word out and stop doing warnings or cautions. They are an unjustified gamble. If you want to put the employee on notice of his misconduct (Douglas factor 9), do it in an email without calling it anything. Emails in general are not grievable nor do they have much potential to become “personnel actions” if there are no threats or accusations. If you want to discipline, use a Reprimand. Nothing less. Hope this helps. Wiley@FELTG.com

Accommodating Employees with Disabilities During Litigation

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By Deryn Sumner, July 19, 2017

When we think of accommodating employees with disabilities, we often think of it only in the context of what accommodations the employee needs to perform the essential functions of his or her job at work.  However, when employees with disabilities file EEO complaints, it often reasonably follows that these individuals need accommodations to participate in the litigation of their EEO complaints.  The EEOC’s Administrative Judge’s Handbook (available at https://www.eeoc.gov/federal/ajhandbook.cfm) notes that “[a] party, witness or representative appearing before the Commission may be entitled to a reasonable accommodation for a disability. The Administrative Judge may order the agency to provide the accommodation.”  But what recourse does a complainant have when he or she is not provided an accommodation during litigation of a case?

The EEOC’s Office of Federal Operations considered such a situation in Davina W. v. Social Security Administration, EEOC Appeal No. 0120162615 (January 18, 2017). There, the complainant worked as an attorney for SSA in Atlanta, Georgia and had previously settled a prior EEO complaint in 2009 that allowed her to work at an alternate duty station on certain days and have a flexible start time due to her disability.  This didn’t appear to improve the complainant’s work situation, as she subsequently filed two more EEO complaints.  After the agency completed an investigation and the case was before an administrative judge, the agency sought to depose complainant.

The complainant requested that as a reasonable accommodation for her disability, the deposition begin in the afternoon, that she be granted frequent breaks, and given the late start time and need for frequent breaks, noted that the deposition could be conducted over two days.  The complainant stated she needed these accommodations due to medication she took in the morning that took five hours to kick in and resulted in severe abdominal pain and retching and her need for frequent restroom breaks.  According to the decision, the agency declined to start the deposition at a later time or conduct it over two days, and alleged that that the complainant refused to cooperate with the agency’s attempts to depose her.

The complainant filed an EEO complaint alleging that the agency failed to provide her an accommodation or engage in the interactive process with her regarding her deposition, and the agency discriminated against her when an agency official suggested that she consider disability retirement if she required a reasonable accommodation for her deposition.

The Commission found that these allegations should not have been considered separate complaints, but they should have been addressed by the presiding administrative judge in her case, noting its concern that the administrative judge “did not address Complainant’s clear request for an accommodation during her deposition.”  The Commission noted that the administrative judge has a duty and obligation to accommodate parties and witnesses and remanded the complaint for a hearing.

I share the Commission’s concern that the administrative judge did not address the complainant’s clear request for accommodation.  The complainant was not seeking to be excused from deposition entirely, but rather to have the deposition start late enough in the day and provide enough restroom breaks to accommodate her medical condition, which appears reasonable and would have met the agency’s goal of obtaining the complainant’s deposition testimony.  Instead of being required to file a separate EEO complaint to address the issue, the administrative judge should have considered it as part of overseeing processing of her existing EEO complaints. Sumner@FELTG.com

 

Psychiatric Examinations, the MSPB, and the EEOC

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By Barbara Haga, July 19, 2017

Last month I began recounting the case of Ms Doe, whose employer the Pension Benefit Guaranty Corporation (PBGC), was concerned about her “unusual and inappropriate behavior.”  We pick up the case with the documentation of the issues with Ms Doe’s behavior and the medical review of that information.  Some of the specifics below come from the subsequent EEOC decision issued earlier this year, Marya S. v. PBGC, EEOC Petition No. 0320160066 (2017).

Documentation

Between February and May 2009. the agency had evidence of multiple exchanges that depicted several instances of behavior that seemed to indicate that there was an issue with her mental status.  These were recorded in e-mails and statements from those who participated in them.  They included the following:

  • Ms Doe sent an e-mail to the Deputy IG claiming her home had been broken into several times since she released information to the IG office. Doe asked if any member of the Deputy IG’s staff had been in her home without her consent.
  • Ms Doe sent an e-mail to her supervisor accusing the supervisor of harassing her and alleging that the supervisor had called a transit officer the previous evening and provided him with the number of the train car in which Ms Doe was riding. She went on to say that “I pray that whatever stronghold has you captive will set you free.” She copied EEO, the CIO, the DCIO, and the OIG on this e-mail.  Ms Doe went on to say that according to the rumor mill the supervisor was trying to get rid of her.
  • In a meeting with her supervisor, Ms Doe accused the supervisor and another official of listening to her conversations and stated that she knew about the “ear piece”. Following the meeting, Ms Doe sent an e-mail to her supervisor in which she said that she hoped the supervisor had presented herself well in front of the hidden camera.

Medical Reviews

After the meeting with the supervisor in May 2009, the supervisor consulted with HR regarding the situation. HR forwarded the information to Federal Occupational Health (FOH) and an FOH physician completed a worksheet indicating he had spoken with HR regarding Ms Doe’s paranoid behavior and would recommend a fitness for duty examination (FFDE).  That physician had contact with Dr. Hibler, a psychologist, who would ultimately conduct the FFDE stating that the real issue was whether Ms Doe was a danger to herself or others.

On May 28, 2009 PBGC ordered Ms Doe to undergo a fitness for duty exam with Dr. Hibler, and placed her on administrative leave pending the results.  Dr. Hibler’s report of the examination stated that Ms Doe was experiencing a psychotic delusional disorder and was unfit.  He recommended that Ms Doe “not be considered for potential return to the workplace until a treating practitioner advises that she is stable and has the resources sufficient to perform her duties.”  He also suggested a follow-up FFDE at that time to objectively determine her emotional status and readiness to perform her duties.

Enforced Leave

Upon receipt of Dr. Hibler’s medical determination, PBGC utilized indefinite suspension procedures to put Ms Doe out of her own sick leave.  The action issued on June 29, 2009 stated that the condition which would end the enforced leave was that she submit documentation from her health care provider confirming that (1) her condition had stabilized, (2) she was no longer a danger to yourself or others in the workplace, and that (3) she was fit to return to work.

Ms Doe replied to the proposal asking for administrative leave for another two to three months so that she could locate a new primary care physician and make an appointment with a psychiatrist.  The agency declined to grant further administrative leave and put her on enforced leave in August 2009.

Medical Clearance to Return to Work

Ms Doe submitted a report in September 2009 from Dr. Schell (a psychiatrist) which stated she “… does not have a history of being a threat to others and is not a present danger to herself or others.  She is able to return [sic] to work without restriction.”  PBGC removed Ms Doe from enforced leave status and placed her on administrative leave pending Dr. Hilber’s review of Dr. Schell’s report.

Dr. Hilber’s letter dated September 14, 2009 regarding his review of the submitted documentation, stated, “Dr. Schell’s report does not contain details and an explanation that would be needed to sufficiently understand [the appellant’s] fitness for her return to work (whether with or without accommodation).”  Dr. Hilber recommended that Ms Doe be reevaluated by an independent medical examination sponsored by PBGC so that the perspectives offered by Dr. Schell are considered by an evaluator of the same professional discipline.

PBGC did as Dr. Hilber suggested and notified Ms Doe that she had two options:  1) to submit medical information that cured the deficiencies in the report Dr. Schell submitted or 2) submit to a follow-up examination with Dr. Hilber and a psychiatric evaluation with Dr. Allen.  Ms Doe chose the first option and submitted a progress note from Dr. Schell. Dr. Hilber reviewed the note and found that it did not address the deficiencies noted earlier.  On October 1, 2009 PBGC ordered Ms Doe to undergo the evaluation with Dr. Hilber on October 8, 2009 and an appointment with Dr. Allen on October 9, 2009.

Ms Doe attended the appointment with Dr. Hilber.  He found that she was still evidencing severe mental illness.  He went on to say that she was “too fragile to be safely returned to the workplace.”  Ms.Doe did not attend the appointment with Dr. Allen.

PBGC followed up with a notice to Ms Doe advising that she had two options, 1) to give consent for Dr. Hilber to consult directly with Dr. Schell to resolve the deficiencies in the medical report and evaluate her for return to work, or 2) undergo the psychiatric evaluation with Dr. Allen.  Ms Doe was given a deadline of November 6, 2009 to advise HR or her choice of option.  She was notified that if she did not elect one of the options and timely notify HR her status would be changed to AWOL.  Ms. Doe did not comply and her status was changed to AWOL beginning on November 9, 2009.

What Came Next?

Ms Doe filed two MSPB appeals, one on the enforced leave action and the second on her placement in AWOL status.  She later filed an appeal with the EEOC of the MSPB decision which found that there was no disability discrimination or retaliation in the PBGC’s actions.  We will review the decisions next time, and return to the issue of the problem with the OPM medical examination regulations.  Haga@FELTG.com

Reality Check for the New Political Overlords

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By William Wiley, July 11, 2017

We get so many good questions. This one comes from a class participant in our fabulous FELTG FLRA Law Week (next offered in Washington, DC November 13-17):

Dear FELTG Labor Law Semi-Experts (I say “semi” because as you teach, no human on Earth really understands federal labor law)-

I took your FLRA class last spring in Washington, D.C.  (It was very helpful, thanks!)  I’m pretty sure that at some point during the course, you offered that we could send you a question afterwards. I’d like to take you up on your kind offer.

My question is whether (or when?) a local CBA always “trumps” an Agency policy, or if that holding is limited to “localized” policies.  I’m looking at cases such as Broadcasting Board of Governors v. AFGE (66 FLRA 380), that seems to indicate this is well settled.  But, in an environment (such as we have here at my agency), where we have unions that have National Consultation Rights (NCR), I’m trying to reconcile these rulings with my basic understanding of the Union’s very limited rights in NCR, and that the Agency is permitted to make universal policies at a national level as long as they go through NCR (local CBAs be damned).

In other words – if, at a local field center, the local management agrees to terms on, say, office workspace, with their local union, enter into a CBA articulating those provisions, and then later on, the national agency management comes up with a national level policy on office workspace, that is inconsistent with the terms of the CBA, but properly goes through the NCR process.  Which policy controls at the local field center?  The national level Agency policy?  Or the local policy as articulated in the CBA?  It just doesn’t make sense to me that a local manager’s actions at the local level (in signing the CBA) could essentially prevent national management from having a universal policy.

Any thoughts on this?

And our FELTG response. Sad!

Dear FLRA Law Week participant-

Very nice to hear from you. As for your question, the union agreement always trumps an agency’s new policies – even when there are national consultation rights – with only two exceptions:

  1. The agency can demonstrate that the new policy is related to the “necessary functioning” of the agency and the change is in response to an “overriding exigency.” See SEC v. FLRA, 568 F.3d 990 (D.C. Cir., 2009).
  2. The new policy is implementing a new law (the incontrovertible law part of the new policy is effective right away; the agency still must bargain I & I and any flexible parts of the law).

As for your hypothetical, as much as it makes our eyes burn, if local management agrees to office space of a specific size, and the agency head later decrees that office space will be less than that, the agency is obligated to continue the bargained-for office space if and until it can bargain its way out of it.

The example we sometimes use in class is from NIH, one of our favorite clients. Years ago, the Secretary of HHS declared through a new policy that the work spaces within HHS would be smoke-free. He reasoned that given the word “health” in the name of his agency, he should prohibit things that by their very nature are not healthy. Great reasoning for the new policy. However, it conflicted with several local CBAs, including NIH, which had old provisions allowing designated smoking areas. There’s a big billboard-size sign as you enter the NIH main campus outside of DC that says, “Welcome to NIH, a smoke-free environment.” Every time I walk past it, I want to add an * and a footnote that says, “*Unless you’re in the bargaining units for law enforcement officers or fire fighters.”

Deb and I recently taught a program at the Naval Medical Center, Camp Lejeune. Same scenario. Years ago, the Secretary of Defense issued a policy prohibiting smoking in the health care facilities within DoD. Well, the CBA employees at Camp Lejeune are still smoking away because it’s been in their contract forever. Hey, it’s North Carolina. They’ve got to do something with all that tobacco.

The theory is this: When your local management agrees to certain office space terms in the CBA, it is actually acting on behalf of the agency head when doing so. And that agreement controls any later agency heads who come along who would like to see another policy. That’s one of the Big Deals we have to deal with when we get a new administration like we are in the processing of doing now. The new politicals come in thinking that they can shake things up (making America great again) and guys like us have to tell them that Congress passed a law 40 years ago that limits that authority in a unionized environment. The most we can do is propose changes either term or mid-term, then take them to FSIP when the union impasses us. There, at FSIP, President Trump’s seven political appointees – who serve at the pleasure of the President – will no doubt conclude that the agency head’s new policy will be the new CBA provision for office space.

What’s that? You’re telling me that the President recently fired all the FSIP members and has not yet replaced them? Oh, well. I’m sure he’ll get around to it eventually. Because you can’t implement the new policy from on high until you bargain your way out from under it. And you can’t complete bargaining without agreement until we get at least four new FSIP appointees.

The fact that there are national consultation rights does not diminish the obligation to negotiate. Consultation and negotiation are two different things, as you point out. The law is specific as to what must be negotiated (not consulted about). If the new policy included any changes to negotiable working conditions, they must be negotiated.

Not the answer you wanted, not the answer we necessarily want to give. But until Congress does something (Ha!), this is our world. Wiley@FELTG.com

Mandatory Spanking

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By William Wiley, July 5, 2017

Sometimes an analogy helps us think about the law. Let’s try that by imagining that you live in a small town and that you’ve made the same mistake as has this author of having children (????).

You received an email earlier today from your fourth-grader’s teacher informing you that little Sophia has once more, for the second time this year, forgotten to do her homework. The email says that you should take “appropriate action.” You’ve already decided that when the homework-skipper gets home from her piano class, you’re going to give her a real talking to. Then, the phone rings:

You:     Hello, Smith residence.

Caller: Mrs. Smith, this is Officer O’Reilly. I’m the Discipline Officer here at Trump Elementary where you daughter, Sophia, is a student.

You:     Yes, Officer. What can I do for you?

Caller:  This just a routine call to make sure that you got the notification about your daughter’s misconduct today and to make sure that you plan to spank her before she goes to bed tonight.

You:     Why, Officer, I have no intention of spanking Sophia. All she did was forget to turn in her homework.

Caller:  I’m sorry, Mrs. Smith, but you’ll have to spank your daughter, at least three swats. You see, this is her second offense this term and Trump’s Table of Punishments calls for a minimum of spanking in a situation like this.

You:     But I don’t want to spank my daughter. I’m sure that I can get her to obey the rules some other way.

Caller:  Sorry, Mrs. Smith. I’m afraid you’ll have to spank her. All the other parents spank their children for a second offense. And our records show that two years ago, you spanked your son Jacob the second time he was late returning from recess. Our goal is consistency of punishment.

You: Consistency of punishment?

Caller:  Yes, that’s right. Punishment consistency has been declared to be the main goal of the Trump discipline program. I’m afraid that either you’ll have to spank her or we’ll have to send someone out to spank her for you.

You: You would do that? Even if I think I can correct her behavior otherwise?

Caller:  Of course. We’re interested in punishment consistency. We’re not interested in what you think might work with your child. We want to make sure that all children are treated the same, whether they need to be, or not. You don’t have a problem with that, do you? Because if you do, I just might have to refer to the Parental Table of Punishments to see if there’s something in there we need to do with you.

Pretty scary hypothetical, isn’t it, this idea that you have to punish your misbehaving kids at some preordained level for the sole purpose of consistency? Who made up this requirement that punishment must be consistent to be fair? Doesn’t it make more sense to let parents decide for themselves how to try to correct their child’s behavior, even if they choose a different method than their neighbors might use? Aren’t we really more interested in the conduct being corrected than in whether various parents use the same methods of correction?

Apparently, Congress is not. In an effort to micro-manage how federal agencies run themselves, the House recently approved HR 2131, a bill that would require DHS to take specific action to “improve” consistency in employee discipline throughout the 22 various departments and agencies that comprise DHS. As far as we can tell, it has done this without any proof that discipline is now being administered inconsistently or that consistency of penalty will somehow improve the performance of DHS employees. Some would say that it appears to have passed a bill that “sounds good,” but in fact has no value and will create an additional burden for DHS supervisors trying to hold employees accountable for their misconduct.

As you regular readers will remember, MSPB got sucked into the penalty-consistency trap back in 2010 when it issued The Terrible Trilogy, three lead decisions that for the first time in the history of our republic held that penalty consistency was the most important aspect of deciding whether a removal should be affirmed on appeal. From 2010 to 2014, the Board routinely and sometimes on its own motion demanded to know whether anyone else at the removing agency had ever done anything similar to the misconduct which was the basis for the firing on appeal. If there was, and the supervisor of that comparator had chosen not to fire the employee, the removal on appeal was set aside. Thank goodness that Sole Remaining Board Member Robbins rejected that view when he was appointed in 2012, realizing the untenable burden that mandating penalty consistency places on management officials. Under his leadership, and with the help of the changing mind of one of the other Board members, the Trilogy has been significantly undermined. Experienced practitioners know that today we are back to just about where we were before the Trilogy: as long as removal is a reasonable penalty, it will not be set aside solely because some other supervisor at the agency did not remove his employee who did the same thing.

Too bad that member Robbins isn’t Congressman Robbins. Perhaps if he were, he could have talked some sense into those who voted for HR 2131 because it “sounded good.”

I’m starting to appreciate how lucky we employment law practitioners have been for the past 40 years. In 1978, Congress passed the Civil Service Reform Act, a unified and comprehensive legal structure defining the rights of civil servants and the authority of supervisors in the executive branch to actually run their agencies. Since that time, Congress has done little to change that basic structure, save for the perennial expansion of whistleblower protections (Congress loves them whistleblowers).

Lately, however, Congress seems to have decided that the executive branch agencies are not being run very well, and that Congress knows how to make that branch of the government work better: reduced official time for union representatives, shorter time limits for appeals, no MSPB review of the termination of senior executives, allowing employees to disobey lawful orders if the employee believes that the order violates some rule or regulation, extension of probationary periods, annotation of adverse findings into departed-employee’s records, reduction in an agency’s ability to use administrative leave, clawing back previous cash awards. And now, mandatory penalty consistency. Each of these changes has either already occurred legally or is being talked about as possibly occurring in the future.

This is a stupid way to run a government. Setting aside for a moment the impracticality of some of the recent legislative “fixes” that Congress has considered, it’s just not the way they taught us in high school civics that things were supposed to work. Congress, you’re supposed to provide the governmental goals and the resources to attain those goals. Then, those in the executive branch will do their best to attain those goals, and the judicial branch will decide whether the executive branch has done that fairly. A very neat and tidy system that does not work when a branch of the government without the responsibility to actually do things tries to manage the branch that actually has to provide government services.

Geez, I didn’t intend for this observation about another poorly thought-out piece of civil service legislation to evolve into a rant about the foundations of governmental responsibility. But it is what it is, as the kids say. So take from it what you will, and remember what you are paying for it. Maybe one of you smart readers out there will actually figure out what to do about it. Until then, email your senators and warn them about HR 2131. Hey, if they’re going to try to screw up the civil service one bill at a time, we’ll just have to fight back in the same way. The stakes are too high to do otherwise.

Wiley@FELTG.com