A Potentially Devastating Impending Change

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By William Wiley, May 9, 2017

Forever, it has been black letter law in the federal workplace that an employee has to do what his supervisor tells him to do. With exceedingly rare exception (involving safety, Constitutional rights, and illegality), if a supervisor tells an employee to do something, the employee has to do it. If he doesn’t, he can be disciplined for Insubordination, perhaps even be fired.

This concept is embodied in a term often heard in a unionized workplace, “Work now; grieve later.” If an employee is confronted with an order that she believes to be improper – perhaps the order requires her to forego a break that she believes she is entitled to under the collective bargaining agreement – the employee is supposed to obey the order, then challenge the order after the fact by filing a grievance. In that balanced approach, the supervisor still gets done what needs to be done, and the employee still gets redress to correct any harm that might have occurred because of the order if it is found to have been improper after the fact.

Think what it would be like otherwise. What if an employee could disobey an order he felt was wrong? The supervisor orders the employee to do something. If the employee believed that the order violated the union-management collective bargaining agreement or some other rule, the employee could refuse to obey the order without fear of discipline. Perhaps the order would have to be subjected to oversight in the grievance procedure, and once adjudicated as consistent with the CBA, the employee would then have to obey it. Can you imagine the disruption that this would cause in the federal workplace, if supervisory orders had to be adjudicated as proper before they could be enforced?

Add to this the reality that CBAs and regulations are subject to various interpretations, that one person’s honest belief in what the rule means is different from what another person believes in good faith the rule means. If a supervisor gives an order, in my experience the supervisor believes that it is a proper order. If the employee concludes that based on his own interpretation the order violates some policy, should we really delay obedience to the order until the disagreement is resolved by an arbitrator or a judge? Holy-moly. And the public thinks that the government is inefficient as it is. Just wait until they see all those civil servants waiting around until their boss’s orders are litigated as proper before they will be obeyed.

Well, buckle up. Congress is on a path to make this hellscape scenario a reality in the federal government. Recently, the House passed HR 657, the “Follow the Rules Act,” amending 5 USC 2302(b)(9). That legislation would make it illegal for an agency to discipline a disobedient employee who was insubordinate because the employee refused to obey an order that violated a “rule or regulation.”  Let’s think this change through for a minute, from the perspective of those of us with significant experience in the federal civil service:

  • The media buzz around the passage of this bill was that it would increase protections for whistleblowers. Wrong. Whistleblower rights are embedded in 2302(b)(8). This legislation would amend 2302(b)(9). If enacted, it will apply to EVERYONE, not just those federal employees who blow the whistle.
  • If an employee reads this amendment (if the Senate and the President make this bill into a law), she would be comfortable believing that she could refuse to obey an order that she believes violates a “rule or regulation.” Well, what if it turns out she is wrong? What if her honest belief about what the order meant was simply mistaken? If she is fired for insubordination, if on appeal her argument that the order violated a rule is not affirmed, she has effectively bet her job that her interpretation was correct at the moment she chose to be insubordinate. Why in the world would we want to entice federal employees into this high-risk gamble with their livelihood when there are other ways to protect them from abuse?
  • The amendment is silent about the definition of the words “rule” and “regulation.” As we have something called the “Code of Federal Regulations,” it’s relatively easy to recognize “regulation” as referring to that body of guidance. But what is a “rule” exactly? Fortunately, the word “rule” has been in law since 1978. It can be found in the paragraph immediately above (b)(9), the paragraph that defines a whistleblower as someone who, among other things, discloses a violation of “law, rule, or regulation.” MSPB recently defined the word “rule” for this purpose as “established or authoritative standards for conduct or behavior.” In one case, it found that a simple agency memorandum could constitute a rule. See Chavez v. DVA, 120 MSPR 285 (2013); see also Raiszadeh v. DHS, DC-0752-12-0648-I-2 (2015)(NP).
  • If the Board were to use that same interpretation of “rule” for the purpose of enforcing the HR 657 amendment, just think of all the potential that an employee has for believing that a supervisor’s order violates a “rule.” Double holy-moly.
  • Again, looking to whistleblower protection law for guidance about how to interpret the proposed amendment to (b)(9), an employee is protected as a whistleblower if he discloses a violation of “law, rule, or regulation” even if he is mistaken as to whether there actually has been a violation of law, rule, or regulation! All the whistleblower needs is a “good-faith belief” that there has been a violation. See Herman v. DoJ, 115 MSPR 386 (2011). What if we were to apply that same principle to cases that arise under the proposed amendment? Do we really want to allow civil servants to disobey supervisory orders that conform with law, rule, and regulation simply because the employee has a good-faith belief that the order is improper?

Here at FELTG, we try our best not to do too much of that “The sky is falling!” stuff, raising concerns where there really are none to be raised. We hesitate to sound the alarm too many time. But this is one that might be worth your attention. Know any Senators? If so, please let them know that this thing is coming and that it has repercussions that are not being recognized. Buddies with The Big Guy? Next time you’re on the links, maybe mention that this might be a good one to veto. Because if this bill becomes law, it will legitimize and protect every federal employee who thinks his supervisor is an idiot.

And I hear that there are a lot of those around. Wiley@FELTG.com

Answering OMB’s April 2017 Directive

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By Barbara Haga, May 2, 2017

I am chalking this column up to doing my patriotic duty.  OMB Directive M-17-22, Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce, dated April 12, establishes a number of initiatives for changing what work is done and how work is done within the Federal government.  Agencies have a deadline of June 30, 2017 to prepare a plan to maximize employee performance.  Paragraph D.iii.1 requires that agencies review their procedures for dealing with poor performance and conduct and to “… specifically review whether their policies create unnecessary barriers for addressing poor performance.”  OMB is requiring agencies to remove steps not required in statute/regulation to streamline processes for dealing with poor performance and to establish clear guidance on the use of PIPs.

I have seen many of these “unnecessary barriers” that are included in agency performance plans and union contracts in the past ten years, so I am making a list of what needs to be eliminated.  Of course, for some of you this will mean bargaining your way out of things that someone agreed to in the past.

Barbara’s Top Four

Being in this top four list is not a good thing.  These are things that either drag out the process, allow employees to get away with doing less, create extra hoops for managers, or give employees more things to challenge through the grievance process.  We don’t need any of that.

  1. Setting a time frame for a PIP. There is nothing in 5 USC 43 or 5 CFR 432 that establishes a minimum time frame for a PIP.  Why would an agency do so?  Should it not be what is reasonable for the position?  One agency I have worked with has established a five month improvement process – a 30-day pre-PIP and then 120 days of an actual opportunity period.

If it is a GS-6 Accounting Technician who is performing hundreds of transactions in a month is 30 days not enough?  If is a GS-14 Aerospace Engineer at NASA working on design of a new spacecraft, maybe we need 90 days to get enough results to be able to make a determination whether the level of performance has improved.  It depends on the complexity of the work.

What difference does it make if we HR practitioners are just overly cautious and make a PIP extra long?  The longer the PIP the more burdensome it is on the manager who is supervising the employee.  Believe me, I know.  I have done two of these actions on employees who worked for me.  Remember what a PIP is – the employee is performing normal work assignments in as normal a work situation as the manager can provide.  However, the manager has to review the work on the elements under which the employee is on notice, determine what is correct and what isn’t, document all of that, and burn up the copy machine keeping copies of all of that work – all while doing everything she would normally be doing, meeting frequently with the employee on the PIP and keeping notes about that, and not being obvious to the other subordinates about what is going on.  It takes its toll.  The employee is, and has been, paid to perform this work and he should be able to perform it.  The managers are not the bad guys in this process, so we shouldn’t put a more onerous requirement on them than what is necessary.

Recommendation:  Revise your performance plan to say what 5 CFR 432.104 says about the length of the PIP:  For each critical element in which the employee’s performance is unacceptable, the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.

  1. Mandating extensive amounts of assistance. We should also remember that the PIP is not intended to train an employee on the work their position requires – they are supposed to have the ability to do the work already.  It is an opportunity for them to show that they can perform at an acceptable level with assistance.  Some agency PIP requirements include reviewing every single piece of work the employee performed, even when it is a higher grade position. I don’t view that as assistance; it essentially is taking on the employee’s responsibilities.  In other words, the work requirements are watered down so much that even if the employee meets the PIP requirements she isn’t performing at grade.

Other agencies include assignment of mentors to the employee in the PIP.  If the employee is already qualified to do the work of the position, why would he or she need a mentor?  If, because of the span of supervision, the manager is stretched too thin to be accessible to the employee and someone is covering that management capacity to give guidance and review results of work, I am not sure the term “mentor” is accurate – work leader sounds more like it.  Mentors aren’t usually supposed to judge – they offer guidance and suggestions.

Recommendation:  Make sure that the performance system does not require anything further than “The employee will be provided assistance, which will include regular feedback from the rater on the elements in question during the PIP period.”  Anything beyond that which the agency chooses to give is just whipped cream on top!

  1. Requiring that an Unacceptable rating be assigned. There is no requirement in law or regulation that an Unacceptable rating be assigned in order to take an unacceptable performance action.  In order to propose a downgrade or removal based on unacceptable performance 5 CFR 432.105(a)(4) requires that the notice contain “both the specific instances of unacceptable performance by the employee on which the proposed action is based and the critical element(s) of the employee’s position involved in each instance of unacceptable performance.”  Requiring assignment of a rating does a couple of things.  The worst is that it creates another grievable action (or at least a request for reconsideration depending on your appraisal system) that will be running at the same time that the adverse action is being proposed and decided, using the same evidence that will be reviewed in the 432 action.  No practitioner in his or her right mind should want that to happen.

To assign a rating, you must also meet the minimum appraisal period established in your performance plan.  That is typically 90 or 120 days.  If you were beginning an action near the beginning of a cycle, your PIP would have to be at least that long.

Recommendation:  Eliminate any requirement to assign of a rating of record of Unacceptable at the end of a PIP or in order to proceed to a performance-action.

  1. Using Minimally Successful ratings. If your agency includes a Minimally Successful level (Level 2) on the element (summary ratings don’t matter here), then it is time for it to go.   If you have Level 2 then the maximum amount of improvement you can require an employee to reach during a PIP is Level 2 (try reading these cases if you don’t believe me: Jackson-Francis v. OGE, 107 FMSR 73 (2006); Henderson v. NASA, 111 FMSR 173 (2011); and Van Pritchard v. DOD, 112 FMSR 27 (2011).  Your friends at agencies that don’t have a Level 2 rating on a critical element can demand that their employees reach Fully Successful (Level 3) performance to successfully complete their PIPs.

At a minimum, Federal agencies should be able to hold employees to Level 3.  Allowing an employee to hang out at Level 2, potentially for years, and losing just their within-grades and some of their retreat rights in RIF, is crazy. But if you have a Level 2, that’s all you can require.

Recommendation:  Change your element rating scheme to eliminate Level 2 on a critical element.  Level 2 in the summary rating scheme also needs to go if you don’t have non-critical elements.

I wish I had more space.  I could have put together a longer list!  Haga@FELTG.com

Attend a special program on this topic: Maximizing Accountability in Performance Management, July 25 in Washington, DC.

We Should Stop PIPing Bad Performers

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By William Wiley, April 25, 2017

Any of you readers who have been to any of our training sessions probably fell off of your bar stool when you read the title to this article. That’s because here at FELTG, we have sung the praises of Chapter 43 removals ever since we started presenting training sessions two decades ago. They are easy to do if you know what you’re doing and darned near bullet proof on appeal given the low standard of proof necessary to establish that removal is warranted.

Well, we are not abandoning that theme. We still believe that removals using the procedures found at 5 CFR 432 are preferable to starting a 5 CFR 752 misconduct action. What we are writing about today is the concept of a PIP. Perhaps it’s time for a change.

As we always do in our training, we begin with the law. Here’s what the statute has said since 1978 about firing poor performers from the civil service:

Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for … removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. 5 USC 4302(b).

A PIP as it is used in most every federal agency is an action that notifies the employee of prior unacceptable performance, then establishes a period into the future during which the employee has to perform acceptably or be fired. Observe that the law says nothing specific about a “performance improvement plan.” If you think about it, an agency could give an employee the statutory “opportunity to demonstrate acceptable performance” simply by giving the employee performance standards, an adequate amount of time subsequently to demonstrate whether she can do the job, then remove her if she failed to perform acceptably. The law does not say you can fire a poor performer “only after notice and a subsequent opportunity to demonstrate acceptable performance.” One could argue, if one were into statutory construction, that had Congress intended that there be notice, Congress would have called for notice in the law.

Unfortunately, that’s not how OPM interpreted the law back in the day. Given its statutory authority to issue implementing regulations, OPM came up with the requirement for notice to proceed an “improvement period” prior to an agency being allowed to fire the poor performer. That’s where we got the acronym “PIP.” The first set of regulations that OPM issued to interpret this part of the Civil Service Reform Act called for a formal “performance improvement period” to proceed any removal for failure to perform acceptably. Subsequently, OPM spruced up its regs a bit and changed (without explanation) the name of this period into a “performance improvement plan” thereby retaining the acronym PIP. Today, OPM’s regulations use no term that fits the acronym PIP, and instead revert to the original statutory language that refers to “a reasonable opportunity to demonstrate acceptable performance.” 5 CFR 432.104. Although the regulatory language now tracks the law, the concept of notice – arguably not mandated by the law – remains in effect.

Even with all these regulatory name changes, most supervisors we work with here at FELTG still use the old acronym “PIP.” It’s short, sounds nice, and is reminiscent of the backup singers for Gladys Knight. 😉 In fact, in our FELTG seminars, we sometimes exhort supervisors who have a non-performing employee to “PIP ‘em early, PIP ‘em often” just like they vote in Chicago. Well, maybe it’s time for a change.

The acronym PIP, implies an “improvement” opportunity. However, the law calls for a “demonstration” opportunity. Think how these implications are importantly different. If you were to say to me, “Demonstrate whether you can play the piano,” I would sit at a keyboard, move my fingers, and demonstrate very quickly that I cannot play anything at all. However, if you were to say to me, “Improve your ability to play the piano,” I would sit at a keyboard, do some initial finger moving, and then do more finger moving in an attempt to improve my playing ability. In other words, the fact that initially I cannot play the piano is irrelevant to whether I can improve my playing with time.

We don’t get to make the laws here at FELTG, but we do see it as our responsibility to try to understand the law so we can help those of you who attend our seminars do your jobs better and more efficiently. This statute does not mandate that an agency provide prior notice nor does it require an improvement period. It calls for an “opportunity to demonstrate” acceptable performance. We think that the terms in use today – “PIP” and even “opportunity period” – attach the wrong focus to the obligations that come into play when the civil service has a poor performer. The law seems clear to us that the requirement is on the employee to demonstrate acceptable performance with the agency providing assistance.

If it were up to us, we would wave our magic regulatory wand and decree that if indeed we are going to require notice and a subsequent evaluation period, we should drop the acronym “PIP” and instead used the term “Demonstration Period,” maybe “DP” for short. That approach places the emphasis where the Reform Act intended it to be; on the individual employee to show us whether he can perform the job he is being paid to perform.

Here at FELTG, we obviously are not too good at creating pronounceable acronyms (res ips). We have to use a little creative pronunciation to tell people orally who we are. So for the sake of being able to orally reference this new DP, I think it would be OK if we pronounced it similar to a PIP. When speaking we can call it a “DiP,” thereby allowing us to continue our admonishment to supervisors of poor performers, “DiP ‘em early; DiP ‘em often.”

And if you think the urban term “dipwad” seems appropriate, who are we to judge? Wiley@FELTG.com

Costly Bad Advice

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By Barbara Haga, April 19, 2017

I was going to write about performance plans this month, but a situation about some advice given by an HR practitioner has been gnawing at me for a while and I need to vent.

Background

Commonly a situation comes up in a class somewhere where a supervisor wants a second opinion on the advice that he or she was given regarding a particular scenario.  I usually start with the caveat that there are local issues, local past practices, union contract provisions, etc. that I am not privy to that might change the answer.  Sometimes the answer I give is significantly different than what their legal office or HR office advised.  I try to make them feel better by telling them that this is art and not science, and two practitioners looking at the same facts may very well come up with different approaches to a particular situation.  Sometimes, I tell them I learned this business in an agency that was known for being tough on disciplinary and performance problems, so my answers may suggest stronger approaches than what is typical in their agencies.  But, sometimes when I hear the answers that were given, my jaw drops and I am speechless.  This is one of those cases.

John, the Firefighter

A Firefighter, who we will call John, sustained a severe hand injury outside of work.  The projected recovery period was going to be several months.  As a result of this injury, John was unable to meet the lifting, carrying, pulling, and climbing functions of his job.  A Firefighter must be able to lift and carry someone, climb ladders, operate equipment, handle hoses, put on firefighter gear, etc.  John could not perform these requirements per the medical certification that he provided from his health care provider.

In addition to the Firefighter qualifications, there is also a requirement to be a certified Emergency Medical Technician (EMT).  In order to fulfill those duties, there could be a need to lift and turn a patient, put a patient on a stretcher, insert an IV, etc.  All of these duties were things that John’s injury prevented him from doing.

Apparently, John was a good employee and the Fire Department was willing to wait for him to be able to return.  Unfortunately, John’s injury kept him out of work long enough that he ran out of leave.  So, he asked to come back to work.  In a Fire Department, there must be X number of qualified Firefighters on duty for each piece of equipment at each station at all times.  For example, when there are not enough Firefighters arriving in the morning for the new shift, someone from the prior shift is held over on overtime to fill the gap.  The bottom line is that there is no such thing as a “light duty” Firefighter.  An injured Firefighter might be sent to work in Dispatch or could be assigned to the Inspection Unit to work while he or she is physically disqualified, but those slots are limited.  Often those slots are held for Firefighters on light duty as a result of an on-the-job injury, since keeping those individuals at work reduces the chargeback costs under Workers’ Comp.  So, John was advised that there was no light duty work available.

Up to this point, everything made sense.

The Advice from HR

Somehow the matter was referred to HR.  I don’t know how that happened.  It may have come up as a reasonable accommodation request, or it may have been raised by the union, but eventually an HR practitioner responded.

The answer: the Fire Department was required to accommodate John by allowing him to return to duty in the Fire Station and to work there performing whatever duties he was able to complete.  If they did not comply, Fire Department management could be facing an enforced leave action that they couldn’t win.

That advice is so wrong I hardly know where to begin.

Not a Qualified Disabled Person

John did indeed have a physical impairment that limited several major life activities such as lifting, reaching, working, etc.  But, there is no way he can be determined to be a qualified disabled person.  The definition of qualified disabled person is that the individual can perform the essential functions of the position with or without accommodation.  John could not perform firefighting and EMT functions without accommodation – and what accommodation could be given that would allow him to do so?

If John is not a qualified disabled person, then he is not entitled to accommodation.  So, the advice that the Department was required to accommodate John is not correct.  The EEOC ruled on a case just last year with similar facts.  In Marlin K. v. Department of the Navy, EEOC Appeal No. 0220140005 (2016), a Wastewater Treatment Plant Operator was injured in an off-duty car accident which left him with multiple injuries that precluded him from climbing ladders and stairs, walking to collect samples, and lifting more than ten pounds. Although the employee asserted that the agency could have accommodated him by assigning a coworker to perform the physical duties of his position that violated his medical restrictions, the EEOC found that the agency was not required to remove any of the essential duties of the position as a reasonable accommodation.

The “Light Duty” Position is not a Real Job

If John could have been assigned as a Dispatcher or Inspector then he could have performed duties in a recognized position, but as mentioned earlier, there were none of those slots available when John tried to return to duty.  To have John come in and “do whatever he could do” doesn’t make sense.  I suppose he could fill out paperwork and check tags on equipment, but there wouldn’t be many Firefighter tasks that he could do.  It is at best make work, and might comprise a few hours of the day, but certainly not a full shift.

Someone Else was Being Paid to do John’s Job

Remember, there must be X number of qualified Firefighters on duty at any time.  Even though the accommodation required that John be on duty and paid, someone else had to perform the demands of his Firefighter position since he is not physically qualified to do so.  Thus, someone else was brought in, likely on overtime, to perform John’s duties.  I don’t know of any EEOC decision anywhere that requires an employer to pay two people to do one job.

How Could this be Enforced Leave?

We started with some basic facts about John.  Because of his injury, he is not qualified to perform the duties of his assigned position.  John knows this.  His doctor knows this.  Management knows this.  John wants to return to work because he has run out of leave.  An enforced leave action is putting someone on their leave without their consent.  If it is done by following due process for cause, the agency should be sustained.  It is when it is done without due process that agencies get in trouble.  In this case, there would be cause for a suspension – it’s an inability to perform case. This principle is not new.  See Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1987).

The Cost of the Bad Advice

This organization covers a region of the United States.  When they got the response from their servicing HR office, it was transmitted in writing to all of their Fire Departments as the requirement for handling this type of situation.  From now on, every time there is an outside of work injury that disqualifies someone from their Firefighter job, they will repeat what they did here.  It is a costly mistake that could be repeated at multiple locations in the future.

I think sometimes in the HR world we forget what the real-world impacts are of the answers we provide.

What Should have been Done?

John should have been instructed to apply to the leave donor program.  Perhaps enough other employees would have recognized the dire situation John was facing and would have given him enough leave to get him through the months he needed to recover.  He could have been instructed to apply for FMLA, although in this case, it seems John was a good employee and no one in management was debating whether they would wait for him to come back to full duty and they were willing to give as much LWOP as he needed.

If John insisted that he should be accommodated, he should have been advised in writing explaining why he did not meet the conditions for accommodation.  If he tried to return to work, the agency could have suspended him for inability to perform, either a regular suspension if there was a set return to duty date or an indefinite one if the date was not known.

Unreasonable Accommodation

The requirement in disability cases is “reasonable” accommodation.  I hear too often of cases where the accommodations are unreasonable – like this one.  I don’t know if practitioners don’t know that not everything can be accommodated or that they are so afraid of a finding of discrimination that they advise steps beyond what management’s burden should be, but we owe it to those to whom we provide advice and guidance to do better than this. Haga@FELTG.com

Why “Gentlemen’s Agreements” Aren’t Enforceable Before The EEOC

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By Deryn Sumner, April 19, 2017

In the January edition of this newsletter, I discussed the importance of ensuring that the terms of settlement are properly contained within the “four corners” of a settlement agreement and clearly understood by everyone involved. Just a few weeks ago, the EEOC’s Office of Federal Operations issued a decision illustrating why this is so important. In Retha W. v. Department of Agriculture, EEOC Appeal No. 0120151000 (March 24, 2017), the complainant filed an appeal from a Final Agency Decision finding no breach of a settlement agreement. The Commission affirmed the agency’s position that no breach occurred.  The Commission’s decision tells us that the settlement agreement contained two terms: that the agency would agree to pay the complainant $8,000 and in exchange, the complainant would agree to withdraw her EEO complaint. Seems like unless the agency just plum forgot to issue the payment or refused to do so, there would be no means for a breach, right?

Well, actually the complainant had a different understanding of what the agency was agreeing to do in resolution of the case.  Citing a “Gentlemen’s Agreement” that the complainant claims was “communicated with the involved parties, including Complainant, her representative, the Agency’s resolving official, and the state conservationist at the time the Settlement Agreement was signed,” the complainant asserted that the agency agreed to announce a GS-12 position for which the complainant would be considered for and listed on the referral list. When the agency never advertised such a position, the complainant alleged a breach of the agreement.

The agency reviewed the terms of the settlement agreement itself and found no reference to a term wherein the agency agreed to advertise a position or give the complainant consideration for any such position.  She got the payment of $8,000 she was due under the agreement, and that was it.  Although the agency admitted there being some discussion during settlement negotiations of a position potentially becoming available at some point in the future, there were no promises made and no such agreement was included in the settlement agreement.

In its decision, the Commission included its oft-cited precedent that settlement agreements are simply contracts between the parties, that the intent of the parties must be expressed within this contract, and that the meaning will be determined from the four corners of the agreement without looking to extrinsic evidence. Noting that the “Gentleman’s Agreement” was never reduced to writing (but not that the complainant was female), and that the complainant should have sought to have the term included if she wanted it as part of the settlement, the Commission found no breach of the agreement.  Sumner@FELTG.com.

A Trip to the Federal Court of Appeals

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By Deborah Hopkins, April 19, 2017

A few weeks ago I made a trip from my Petworth condo down to the Prettyman Courthouse on Constitution Avenue, just blocks from the U.S. Capitol. The reason? FELTG’s own stellar instructor Katie Atkinson was scheduled to present oral argument in an EEO discrimination case. Those of you who have been in the business even for just a little while know that this level of litigation is a Big Deal – it’s one step away from the Supreme Court. Yowza. Statistically, most people who read this newsletter will never get to that forum, so let me just paint a picture for you with my words.

Building security is tight and only attorneys with active bar cards are allowed to carry in cell phones; all other electronics are seized and held by security at the lobby level. (Finally, a reason to use my bar card! One is not required to be an attorney to represent a client before the MSPB or EEOC, thus there is no requirement to show a bar card or inform the administrative judge of a bar number during litigation.)

The courtroom is pretty imposing. If you’ve been to an MSPB or EEOC hearing, you were probably underwhelmed (as I was) with your first “hearing room” experience. If you haven’t had that experience, let me set the stage: in most cases hearing rooms are bathed in fluorescent lighting, there might be coffee stains on the carpet, not a remote occurrence of mahogany furniture or classical pillars anywhere. In fact, a lot of EEOC hearings take place in simple conference rooms. So when I walked in to Courtroom 31, I took in the imposing painted portraits of the many men whose presence had graced that very bench (sadly, just a handful of female faces adorned the walls), the dark wood, the formal jury box, and the multiple security officers. Everyone was dressed in conservative business suits – even people who were only there to observe.

A clerk for each of the three judges came out about five minutes before court was in session, and arranged the bench per what appeared to be unique specifications – materials on the table set just so, and even the angle of the chair’s swivel toward the door to chambers. Talk about formal.

With one minute to go, the marshal explained to the crowd (a group of approximately 30 people; three arguments were scheduled for that morning) exactly what would happen next.

Then, as the judges walked out, in something astoundingly formal and supremely cool because it’s just like what happens at the Supreme Court, the Court Crier announced in a commanding voice, “The Honorable Justices of the District of Columbia Court of Appeals. Oyez! Oyez! Oyez! All persons having business before the Honorable, the District of Columbia Court of Appeals, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.”

So cool.

So let me give you a quick lesson in procedure. The party filing the appeal goes first. There’s a little light at the podium – kind of like a horizontal traffic light – that turns green when the clock begins. With two minutes left (in general, oral arguments are scheduled for 10 or 15 minutes each side, though in more complex cases more time may be designated) the light turns yellow, and when time is up it turns red.

As much as attorneys practice the oral argument, when the light turns green anything can happen. Judges can interrupt, ask questions, pontificate, or change the entire direction of the discussion. That’s why it’s important to intimately know the case law from the briefs; chances are you’ll be asked about cases by name.

And ask questions the judges did. I won’t go in to the details of the oral arguments here but suffice it to say, Katie Atkinson did an amazing job. The most impressive thing to me was that she didn’t even take up the entire time reserved for argument. She stood and addressed the Court, made her argument, answered the judge’s questions, and when she was finished making her point she sat down. What a stellar example of a veteran move that reflects the mindset of a pro: whether in argument or in writing, after you’ve made your strong argument, STOP talking (or writing). No need to dilute your argument with meaningless words.

We’re looking forward to the decision which should come out any day now. In the meantime, if you need hearing practices training, let us know and we can send our resident pro to teach you all she knows!

Hopkins@FELTG.com

Legal Analysis 101

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By William Wiley, April 19, 2017

All right all you brilliant legal-like minds out there. Work through this law with me. What do you think this means, and why did Congress say it?

5 U.S.C. 1214: (f) During any investigation initiated under this subchapter, no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation … without the approval of the Special Counsel.

If it’s of any help, the “subchapter” referenced in this language is Title 5 – Government Organization and Employees, Part II – Civil Service Functions and Responsibilities, Chapter 12 – Merit Systems Protection Board, Office of Special Counsel, and Employee Right of Action, Subchapter II – Office of Special Counsel. So, what we are talking about is that period of time that OSC has decided to come in to your agency and investigate the suspected reprisal against an alleged whistleblower by one or more of your management officials. OSC usually notifies you officially of its investigation when it has heard enough from the employee/complaint to conclude that maybe there is fire beneath the smoke of the claim. It contacts the agency, usually through the office of general counsel, when it is ready to demand documents and needs access to agency employees to depose. That’s when you know, often for the first time, that there is an OSC investigation afoot under this subchapter.

The statute prohibits an agency from disciplining “any employee” for “prohibited activity.” Well, the activity prohibited that OSC investigates is reprisal against a federal employee for whistleblowing. The “activities” that are prohibited are specifically enumerated at 5 USC 2302(a)(2)(A) and include most significant personnel actions such as disciplinary actions or performance ratings. The “prohibited” part refers to taking the action based on an improper motive, namely whistleblower reprisal. As for the “any employee” language, those who can be investigated for whistleblower reprisal are federal employees who have the “authority to take … personnel actions.” 5 USC 2302(b).

Wrap all this up and in lay terms, what the law says is that an agency must get OSC’s approval during an OSC investigation if it intends to discipline a management official for the misconduct of reprising against a whistleblower. This makes sense if you think about it. If an OSC investigation results in a conclusion that I have reprised against a whistleblower, OSC can file charges against me before MSPB and have the Board discipline me. However, during an investigation into whether I reprised against the whistleblower, if the agency were to discipline me for reprisal with – say – a one-day suspension, OSC would be precluded from subsequently disciplining me more seriously because I would have already been disciplined for the misconduct. No sir; no double jeopardy in our system of workplace justice, thank you very much Fifth Amendment (in analogy only, of course).

Did you notice the “…” above? For clarity, when quoting the law, I left out the phrase “or for any related activity.” That’s an awkward seemingly-unnecessary term, but it appears to me to refer again to the “any employee” with the authority to take a personnel action. Once more, we’re talking about needing OSC approval to discipline a management official.

Why all this detail? Because some agency officials have concluded that this language requires that it get approval from OSC prior to disciplining the employee who filed the reprisal complaint (for misconduct, not related to whistleblowing). In fact, even EEOC appears to believe that OSC approval is required prior to an agency disciplining an employee who has filed a whistleblower reprisal complaint. See Latricia P. v. USDA (Natural Resources Conservation Service), EEOC Appeal No. 0120152533 (February 16, 2017).

Where in the world might an agency as experienced as the Department of Agriculture get the idea that it needed OSC approval to discipline an employee who has filed a whistleblower reprisal complaint resulting in an investigation?  Well, I certainly do not have any specific inside information into this case, but in my experience, I have heard that incorrect interpretation of the law put forward by – are you ready? – OSC itself. Hey, if I’m OSC, my job is to protect whistleblowers from bad treatment. If you fire or otherwise discipline the whistleblower while I’m conducting an investigation, you’re going to mess up my investigation and interfere with my defense of that employee. If I can get you to believe that you need my approval to discipline a complainant, why would I not want you to believe that?

A number of you readers have had dealings with OSC in situations in which you have an intent during an investigation to discipline the complaint for misconduct or perhaps fire the complaint for poor performance. Even if you have not heard an OSC representative tell you affirmatively that you need OSC’s permission to go forward, have you ever heard an OSC representative say to you, “Hey, if you need to fire this complaint for reasons unrelated to whistleblowing, do what you need to do to hold him accountable. Our approval is required only if you’re going to discipline one of your managers for reprisal.”?

I am not worried about my email inbox becoming crammed with responses to this question.

OSC does not have the authority to require you to get its approval prior to disciplining a complainant during an investigation.  If it believes your discipline amounts to reprisal of some kind, it can file a motion for a stay of the discipline with MSPB. The Board can order you to hold off on disciplining the employee, but OSC cannot.

Know the law. Do not rely on OSC’s interpretation of it. They are many good people at OSC, some of which I have considered my friends for 35 years. Yet their job is different from your job. You need to run the government and hold misbehaving employees accountable; the Special Counsel does not. Wiley@FELTG.com

Seventh Circuit Court of Appeals Agrees with EEOC’s Position Regarding Sexual Orientation Claims

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By Deryn Sumner, April 19, 2017

As we’ve apprised the FELTG audience before, there has been a steady progression over the years regarding how claims of sexual orientation discrimination have been processed by the Commission.  Initially, such claims were outright dismissed for failure to state a claim.  Then, the Commission took the view that claims of sexual orientation discrimination really stated claims of sexual stereotyping, and thus ordered agencies to start processing these claims under that theory.  Then, in Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the Commission dispensed with such analyses and definitively held that claims of sexual orientation discrimination are inherently related to sex and therefore should simply be considered claims of sex discrimination.

The wing of the EEOC that conducts litigation to obtain relief for victims of employment discrimination followed by filing civil actions in U.S. District Court, as we discussed last year in this newsletter, applying the argument in Baldwin.  These and other cases are making their way through the federal district courts and courts of appeals.  Just recently, on April 4, 2017, the Court of Appeals for the Seventh Circuit issued a decision affirming the holding that claims of sexual orientation state claims of sex discrimination.  The case is Hively v. Ivy Tech Community College of Indiana and in it, the Court of Appeals vacated the district court’s dismissal of the complaint on the basis that a claim of sexual orientation didn’t state a claim under Title VII, and remanded it.

The Court of Appeals decision referred to much of the same precedent as the EEOC’s decision in Baldwin, tracing the evolution from the Supreme Court’s holdings in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).  Noting that it could not act to amend Title VII to include sexual orientation, the Court turned to whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.  There was substantial discussion of statutory interpretation, which I will leave for those of you fascinated by such discussion to read on your own.  And the EEOC got credit for the decision in Baldwin, when the Seventh Circuit Court of Appeals noted, “the agency most closely associated with this law, the Equal Employment Opportunity Commission, in 2015 announced that it now takes the position that Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation. Our point here is not that we have a duty to defer to the EEOC’s position. We assume for present purposes that no such duty exists. But the Commission’s position may have caused some in Congress to think that legislation is needed to carve sexual orientation out of the statute, not to put it in.”

Raising another aspect to the analysis, the Court of Appeals also discussed an argument raised by Hively referencing the Supreme Court’s decision in Loving v. Virginia, 388 U.S. 1 (1967).  This is the case that held that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”  Ms Hively argued that her association with another woman was the cause of the discriminatory actions she experienced, which the Court credited in its decision.  As we see more of these decisions come out of Courts of Appeals, it becomes more and more likely that the Supreme Court will address whether Title VII includes sexual orientation claims as sex discrimination claims in the near future.  Sumner@FELTG.com

On a Related Note…

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By William Wiley, April 19, 2017

Over drinks and dinner the other night, our favorite time to pontificate on the fate of the civil service, Deb, Ernie Hadley, and I came up with the following fascinating facts:

  1. There are five Commissioners at EEOC. Each is appointed by the President, confirmed by the Senate, and serves a fixed term from which they essentially cannot be removed during the term. All five cannot be from the same political party.
  2. Currently, one of the five positions is vacant. The term of another expires in ten weeks. The term of yet another expires on July 1, next year. That means that within the next 15 months, President Trump will have the opportunity to name three new EEOC Commissioners, a voting majority.
  3. The President is free to select whomever he thinks would be a good Commissioner. If I were the President I would certainly want to appoint individuals as Commissioners who shared my view of civil rights law. For example, if I strongly felt that sexual orientation was a form of sex discrimination, as does the Seventh Circuit, then I would appoint individuals who hold the same view. On the other hand, if I felt that was not the case, as at least two other circuit courts have concluded, then I would appoint individuals with that view.
  4. EEOC has taken the position for many years that its only real controlling court is the US Supreme Court. In other words, it does not feel itself bound by the rulings of the individual circuit courts.
  5. As EEOC interprets the civil rights laws for the purpose of federal employee discrimination complaints, whatever it says about sexual orientation as a protected category applies to all federal agencies regardless of contrary rulings by the individual circuit courts.
  6. Until now, the Commission has held, as explained by Deryn above, that sexual orientation discrimination is a form of prohibited sex discrimination. However, nothing stops a bunch of new Commissioners from moving in the other direction.
  7. In fact, as far as I can tell, nothing requires the President to appoint a full complement of five Commissioners. He could appoint a Republican of his choosing, and if confirmed by the Senate, there would be a voting quorum even though the other two seats – seats that would have to be filled by members of another party – remain vacant.

Here at FELTG, we have our own strong opinions as to how this law should be interpreted. But none of us has been appointed to anything in a very long time, so our opinions are worth exactly what you are paying for them. The reality of our business, though, is that protections from sexual orientation discrimination in the federal civil service as a form of sex discrimination are in a precarious position.  Stay tuned to this space for any updates that come along. Wiley@FELTG.com

Bumping the Innocent Incumbent as a Remedy in Employment Discrimination Cases

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By Deryn Sumner, April 19, 2017

Our mantra for fashioning remedies in employment discrimination cases is that the victim of discrimination should be placed, as closely as possible, in the position he or she held prior to the discrimination.  In claims of discriminatory non-selection, this typically means giving the employee the position he or she applied for, or at least a substantially equivalent one, with the agency, along with the back pay and associated benefits, including any step increases or career ladder increases that would have been earned if the employee had received the position when she or he should have. So what happens when the position at issue is unique or one of a kind?  Well, since the goal is to get the complainant to where he or she should have been, this can sometimes mean bumping or removing the person who got the job, likely through no fault of their own, so that the complainant can have it.

In 2016, the Commission considered such a case and ordered that the agency must bump the incumbent in order to remedy the discriminatory act.  In Toney E. v. Department of Agriculture, EEOC Appeal No. 0420150019 (March 18, 2016), the petitioner worked as a GS-11 academic program manager at a Job Corps Center in Bristol, Tennessee and filed an EEO complaint alleging discrimination when the agency did not select him for any of four center director positions for Job Corps Centers located in Coeburn, Virginia; Bristol, Tennessee; Franklin, North Carolina; and Pisgah, North Carolina, respectively. The agency issued a Final Agency Decision (FAD) finding it failed to articulate a legitimate, non-discriminatory reason for not selecting the petitioner and ordered he be promoted.

There is a substantial procedural history here, but relevant to this discussion, the Commission issued direction in Request No. 0520140443 (February 6, 2015) that the petitioner “be awarded the position of Center Director, GS-0340-13, or a substantially equivalent position. The Commission has consistently held that a substantially equivalent position is one that is similar in duties, responsibilities, and location (reasonable commuting distance) to the position for which the complainant originally applied.”

The agency subsequently offered the complainant placement in center director positions in Swan, Washington; Ozark, Arkansas; Golconda, Illinois; or Laona, Wisconsin.  The agency argued that this action placed it in compliance and noted that several Federal circuit courts have found that displacing an innocent employee with one who would otherwise have had the position but for illegal discrimination is generally not an appropriate remedy.

The petitioner filed a petition for enforcement seeking placement into the center director position in Bristol, Tennessee. After consideration of this petition, the Commission concluded that the center director positions offered by the agency were not substantially equivalent because they “were not in geographic/commuting locations remotely close to the positions that Petitioner was discriminatorily denied…The Agency maintains that it is unable to offer Petitioner the Bristol, Tennessee position because it is no longer vacant and is currently occupied by an incumbent employee who apparently was selected over Petitioner.  Although there may be some disagreement among the Federal circuits, case law from federal courts and the Commission recognizes the bumping of an incumbent employee as a possible remedy for discrimination.  The Commission also has previously held that the bumping of an incumbent is a permissible remedy when, in the absence of bumping, the petitioner’s relief would be unjustly inadequate.”

The Commission found that the agency’s actions were not sufficient to remedy the discrimination and the only remedy would be to bump the incumbent and place the complainant there.  I’m sure showing up to take over someone else’s job, who is no longer there through anything he or she did, can make for an awkward first day of work. Sumner@FELTG.com