EEOC Publishes Quality Practices to Improve Federal Sector Complaints Processing

, ,

By Deryn Sumner, February 15, 2017

For years, those of us here at FELTG have not been shy about identifying the ways in which the EEOC can improve its federal sector case processing.  Cases can languish for years before getting assigned to administrative judges. And even after one gets assigned, it can take a few more years to get a ruling on a pending motion for summary judgment, scheduled for a hearing, or receive a decision issued after a hearing.  Sometimes, administrative judges issue decisions relying on incorrect application of the law, or award remedies not allowed by the law, such as punitive damages or compensatory damages in age discrimination cases.  Appeals to the EEOC’s Office of Federal Operations can sit for years and inquiries about when a party can expect to receive a decision all receive the same boilerplate letter in response that essentially says, “we have a lot of appeals to deal with and your case is one of them, but we can provide no timeframe by which you can expect to receive a decision.”  I am not exaggerating when I share that a case I worked on as a law clerk while in law school is still pending a decision on an appeal of remedies before the Office of Federal Operations. Further, I am personally aware of decisions issued by the Office of Federal Operations that contained clear misstatements of the factual record.

So given all that, it was heartening to see the EEOC acknowledge that federal sector case processing can improve.  On January 17, 2017, the EEOC announced the publication of Federal Sector Quality Practices.  In the Commission’s own words, the purpose is “to address the quality of the agency’s hearings and appeals in federal employee employment discrimination complaints.”  Given this, I was pretty excited to read the plan.  I allowed myself to dream that this publication would talk about increased refresher training for administrative judges to keep them up-to-date in developments in the law.  Perhaps the EEOC would be rolling out an e-file system like the one the MSPB has used for years?  Maybe the Office of Federal Operations would, as Ernie Hadley has preached for years, start issuing summary decisions on clear-cut cases to speed up the process?  But much like a Falcons fan on the night of the Super Bowl, my dreams were dashed.

The EEOC’s Federal Sector Quality Practices for Effective Hearings, Appeals and Oversight does lay out quality practices for the hearing stage, appeals, and oversight of federal agencies in EEO programs, but there’s nothing groundbreaking in the actual practices laid out.  You can find the Quality Practices here: https://www.eeoc.gov/federal/quality-practices.cfm

  • Administrative judges should oversee discovery and grant summary judgment when appropriate.
  • Administrative judges should also schedule hearings, make “accurate” rulings on evidentiary issues during the hearing, and issue a decision afterwards.
  • Appeals should be acknowledged, Commission staff should follow up on obtaining the record if the agency doesn’t provide it, and decisions on appeal should be accurate and supported by the record.

Sigh.  Yes, these are all good things, but this doesn’t represent much of anything in terms of new developments.  The most notable thing I found in my review was the codification of the requirement to hold initial status conferences that many administrative judges have been holding for years under the EEOC’s Pilot Program.  I do appreciate the efforts by the EEOC to focus on improvements in federal sector case processing; I just wish it went a little farther to set goalposts for change.  Sumner@FELTG.com

An Ugly Trend in Charge-Framing

, ,

By William Wiley, February 15, 2017

In science, we say that if it only happened once, it could be an accident; if it has happened twice, perhaps it’s a coincidence; but if it has happened three times, we’re onto a trend. I’m afraid we’ve come to a point in MSPB mitigation law that in our training programs here at FELTG, we are going to declare a sad trend. Here’s the background.

There have been three major guiding principles in the world of charge-framing that we’ve taught for years, and they have been successful in many removals involving misconduct:

  1. Affirm all charges, get penalty deference – When all of the agency’s charges are sustained, but some of the underlying specifications are not sustained, the agency’s penalty determination is entitled to deference.  Payne v. USPS, 72 MSPR 646 (1996). Agencies love penalty deference. That means that a Board member can look at an agency’s removal penalty, conclude that if she were the deciding official, she would not have fired the guy, but still uphold the removal as within the bounds of reasonableness, thereby deferring to the agency’s decision. Without penalty deference, a Board member is more empowered and likely to select her own “reasonable” penalty.
  2. Affirm a single specification, affirm the charge – Where more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge.  Burroughs v. Army, 918 F.2d 170 (Fed. Cir. 1990), Hicks v. Treasury, 62 MSPR 71 (1994).
  3. Determine a penalty even if all charges are not affirmed – When the Board sustains fewer than all of the agency’s charges, the Board may mitigate the agency’s penalty to the maximum reasonable penalty so long as the agency has not indicated in either its final decision or in proceedings before the Board that it desires that a lesser penalty not be imposed on fewer charges.  Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999).

Applying these three principles to the drafting of discipline documents, FELTG (along with others with expertise in this field) has been recommending that agencies:

  • Draft as few charges as possible, thereby reducing the chance that one of them will be not affirmed, thereby losing penalty deference.
  • List a bunch of specifications because you only need one to support the charge. If some are not affirmed on appeal, well, so what.
  • Have the decision letter say something like, “Although I have affirmed all three charges, any one of the charges, standing alone, would warrant your removal.” That Lachance-v-Devall-principle covers you on appeal if a charge or two is not affirmed.

In general, we continue to believe that this approach significantly reduces the agency’s chances of having its removal mitigated to a suspension. Unfortunately, we now must acknowledge that the bottom line is sometimes different from where these principles would otherwise take us. For example, in a decision last year in which the agency brought three charges, lost 10 of the 20 specifications, but managed to have at least one specification affirmed for each charge, the Board still mitigated the removal and put the employee back to work.  Brown v. DHS, SF-0752-14-0816-I-1 (2016)(NP). In a case this year, the agency proved two of three charges with four of eight specifications being affirmed. With a charge lost, we can expect mitigation. However, to his credit, the deciding official said he would have removed the employee even without the failed charge. We should see some Lachance-v-Devall deference because all the charges that matter were affirmed on appeal. Well, that didn’t happen. In spite of the deciding official’s statement, the Board mitigated the removal and returned the employee to duty. Leonard v. DVA, CH-0752-14-0301-I-3 (2017)(NP).

So where does this leave us? I’m afraid it leaves us with the conclusion that the Board members sometimes are going to decide the proper penalty, regardless of precedence dating back to Douglas that says it is the agency’s officials who should be selecting the penalty, not the lawyers at MSPB.

Having worked inside the Board for nearly a decade, I fully understand the temptation to step in and decide that a removal is too severe. It’s a lot easier to have sympathy when you are removed from the front lines where these decisions are being made. It’s hard to sit in your big Presidentially-Appointed Senate-Confirmed office and concede that you’re really not in the best position to determine a penalty. But that’s what Douglas says you’ll do.

As a real-life example of how misplaced it is for the Board to determine a penalty, look to Brown. There, the agency removed the employee from her supervisory position. In mitigation, the Board said she should have been demoted to a lower-graded position instead WITHOUT ANY EVIDENCE WHATSOEVER AS TO WHETHER THE AGENCY HAD NEED FOR A LOWER-GRADED POSITION.

Here’s an option the Board should try in cases like these, where a number of specifications and/or charges start to fall out on appeal. Once the judge reaches a conclusion that removal might not be warranted after considering all the evidence, the judge could remand the case to the agency with an order that says something like this:

The agency has brought three charges in this case. Each charge is supported by three specifications. It is my determination that Charge One fails in its entirety, Specification C of Charge Two fails, and Specification B of Charge Three fails. Based on the remaining affirmed charges and specifications, the agency has seven days from today to reconsider its penalty determination and submit argument in support of its new determination. Once the agency has reached a new penalty determination, the appellant will have seven days to respond. As the record is closed, I will take no further evidence.

There’s a new administration in town. How about we try out something new before we lose our civil service to history? Wiley@FELTG.com

Too Much Adjudication

,

By William Wiley, February 7, 2017

As many of you readers know, here at FELTG in addition to providing open-enrollment, webinar and onsite training, we also have a number of agency legal clients to whom we provide advice and representation regarding employee conduct and performance problems. Recently, we were reviewing the judge’s decision in an unacceptable performance removal case which we had helped the agency construct. Claims of discrimination, unreasonably short PIP, hostile work environment based on age … the usual sorts of appellant claims. And of course, the claims all failed and the removal was upheld. Unacceptable performance actions are soooo easy IF you know what you’re doing.

But enough horn tooting.

The judge in this case did something that we see all too often. It seems innocuous, but it is bad for the overall jurisprudence in federal employment law. Part of the appellant’s argument that the removal was wrong was that his supervisor never counseled him prior to the PIP that his performance was unacceptable. As every graduate of our FELTG MSPB Law Week and UnCivil Servant seminars knows, there are four (and only four) requirements for firing a poor performer:

  1. The agency’s appraisal system has been approved by OPM.
  2. The supervisor has informed the employee of the critical elements of acceptable performance.
  3. The employee was PIPed after demonstrating unacceptable performance.
  4. At its conclusion, the supervisor determined that the employee’s performance was Unacceptable in at least one critical element during the PIP.

5 CFR 432.104, Belcher v. Air Force, 82 MSPR 230 (1999), and a million other cases.

Unfortunately, the judge in our case misread the regulation and the case law and added a fifth requirement: that the employee be warned PRIOR TO THE PIP that his performance was unacceptable.  We’ve learned here at FELTG, when we go through the steps to removing a poor performer that some supervisors cannot believe that a supervisor can PIP an employee without prior warning of poor performance. It just doesn’t seem right to them. Some will argue that a “good” supervisor gives constant feedback to an employee so that a PIP implementation will come as no surprise.

Well, isn’t that just delightful. Maybe indeed a “good” supervisor should give constant feedback. Maybe there should be a requirement that employees be warned about bad performance before the initiation of a PIP. But that’s not the law. Congress in 1978 did not say that a warning was necessary; therefore, it is not. Oh, if you want to warn, if you think it’s good supervision to do so, have at it. Or, get yourself elected to Congress and amend the law. Just remember: all a PIP does is say to the employee, “Do your darned job.” Should you really have to warn an employee that he will no longer have a job if he doesn’t do his job? We leave that up to your good management sense to answer that question for yourself.

The problem in this case is that by

  1. Creating a requirement not found in law, and then
  2. Adjudicating whether this “alternative” requirement indeed is present in the case,
  3. An unsophisticated reader might conclude that in the next case, the agency had better satisfy this “alternative” requirement.

Folks. Our adjudicators should adjudicate the law. In this decision, instead of adjudicating the facts of the case, the judge should have said:

The appellant raises the claim that he was not warned of his poor performance prior to initiation of the PIP. As there is no requirement for a pre-PIP warning, I will not consider this claim further.

As Supreme-Court-Nominee Neil Gorsuch recently said, “A judge who likes every outcome he reaches is very likely a bad judge…” Perhaps a pre-PIP warning is a good idea. However, until Congress says it is, it’s not a requirement.  Decisions that mislead by adjudicating issues that are not really issues are bad for our business. Wiley@FELTG.com

What is This Ominous Picture All About?

,

By William Wiley, January 31, 2017

No, this is not one of the inaugural crowd photos that was deleted from the National Park Service website. It is a photo of the big celebration on the Mall a couple weeks ago to celebrate the 38th anniversary of the effective date of the Civil Service Reform Act of 1978. Were you there? Well, although no one else was either, we here at FELTG certainly were (hey, somebody’s taking that picture) because we believe in the importance of federal workers and an efficient accountable government workforce. Plus, we never pass up an opportunity to celebrate anything if food and drink are involved. Be sure to mark your calendars for next year so that you, too, can participate in the big celebration.

Of course, next year the celebration may be even smaller than this picture shows we had this year. Why, you ask? Well, if you have been anywhere other than locked in the bowels of the Mount Weather underground emergency operations center, you will have heard by now that the new administration has declared a hiring freeze for large swaths of the federal government – covering some organizations, excluding others – with Congress considering bills to include/exclude their own favorite agencies.

If you’ve been around for previous hiring freezes, you know that they are a lot like other mistakes in judgment that one might exercise. When something especially good happens to you, for many of us it sounds like a good time to celebrate by having an extra glass or three of a favorite adult libation. Of course, the next morning we wake up and realize that tying one on in retrospect probably wasn’t the smartest thing we could have done the night before. Same result with a hiring freeze. It’s easy to declare one and it sounds like a good way to improve government by reducing the payroll, but in reality, the morning-after hangover tells us that there was probably a better way to get to the same result.

We all know how a hiring freeze works. When a person quits his government job, the frozen agency is not allowed to replace the employee one-for-one. Sometimes there’s a ratio of allowed replacements; sometimes none are allowed at all. According to a recent article in the Washington Post, about 10% of the federal workforce leaves government each year, almost all doing so voluntarily. We don’t have statistics regarding where they go next, but it would seem logical that those who do not retire move on to other jobs in the private sector.

Stay with me as we climb this logic tree. For the sake of having easy numbers, let’s say that 10 out of 100 federal employees (10% of the federal workforce) are toxic; e.g., are bad employees who are not earning their pay check. In a non-freeze year, 10 employees would quit, 10 new employees would be hired, and the percentage of bad employees would stay at 10%.

Now, let’s look at a freeze year. I think it’s fair to say that comparing great employees to toxic workers, the good employees are more likely to leave government than are the weak employees. Good employees get better offers; bad employees often know they are lucky to have a well-paying government job. The good leave. The bad stay put. Again, using easy numbers for illustration, if 10 employees leave the fed during a hiring freeze and are not replaced, we go from 10 bad employees out of 100 to 10 out of 90. That means that now 11% of the civil service is composed of bad employees. If we lose another 10 good employees the following freeze year, we now have 10 toxic employees for every 80 good employees, a bad-to-good ratio of 12.5%. And so on, and so on. Use your own numbers, time frames, and ratios if you prefer, but one thing is clear. If you accept the premise that good employees are more likely to leave government than are bad employees, eventually you will have a federal workforce with a higher percentage of non-performing employees than you would without a hiring freeze.

That’s what I call an unwise hangover.

Another aspect of a hiring freeze that will resonate with readers who have attended any of Deb’s dynamite EEO law seminars regarding the accommodation of employees with disabilities. As all FELTG-trained practitioners know, when working with a disabled employee, an agency is first required to try to modify the employee’s current position so that she can perform its essential duties. If that is not possible, the disabled employee has two other entitlements. In priority order, they are:

  1. Placement into a vacant position for which the employee is qualified, at the same grade anywhere one is available within the agency.
  2. Placement into a vacant position for which the employee is qualified and for which the agency is recruiting at a lower grade.

With a hiring freeze, there are no vacant positions available at any grade. Therefore, the only option for the agency when confronted with a disabled employee who cannot perform an essential job function is removal. The two employee entitlements above become meaningless.

There may well be good reasons for a hiring freeze. Even so, there are also bad outcomes that result from a hiring freeze. One would hope that the decision to impose a freeze is reached only after serious consideration of the morning-after. Wiley@FELTG.com

A Message for DHS and Other Suspenseful Agencies

,

By William Wiley, January 24, 2017

While reviewing Board decisions that closed out 2016, I ran across a couple of Opinions and Orders over at DHS that were issued on the same day:

  • 45-day suspension: Figueroa v. DHS, NY-0752-14-0203-I-1 (December 22, 2016)(NP)
  • 30-day suspension: Flournoy v. DHS, SF-0752-16-0411-I-1 (December 22, 2016)(NP)

DHS won both appeals with the Board affirming each suspension. Nothing to learn from MSPB’s analysis of the penalty and the evidence supporting charges. So why pay attention to these two actions? Well, for one simple reason:

Why, oh why, did DHS implement these two long suspensions rather than shorter suspensions that would not be within MSPB’s jurisdiction (i.e., 14-day suspensions)?

No agency in its right mind wants to have to defend a disciplinary action before the Board if it does not have to. GAO estimates that an agency defense at MSPB costs the government about $100,000 even if successful; more if the appeal is lost. The agency retains the unilateral right to set the length of a suspension. Why would it ever suspend an employee for more than 14 days and have to defend itself before MSPB when it could just as easily suspend for fewer than 14 days and at worst have to defend itself before an arbitrator, half of whose fee is paid by the union and where the grievant doesn’t have rights to discovery? In addition, if an agency suspends an employee for, say, 45 days, that’s 45 days that it is deprived of the employee’s services, causing coworkers to have to carry an extra load for the duration of the suspension. Given the loss of productivity in a long suspension, the significant resources required to defend in a Board appeal, and the rights that Board appellants have to subpoena documents, conduct depositions of agency managers, and utilize all the other tools of discovery not available in arbitration, why ever do a long suspension?

One could argue that a longer suspension is more likely to correct behavior than a shorter one. Well, one who argues that is doing so without any support in research (facts may not restrain some politicians, but they critical to those among us with a reasoned approach to life). There have never been any studies published in the history of the civil service that support the conclusion that longer suspensions are stronger motivators of correct workplace behavior. So this is not a good reason.

Or, one could argue that the employee “deserves” a longer suspension because of what he did. If he deserves a longer suspension, he probably deserves to be fired. Besides, we don’t discipline to punish for the sake of punishment. We discipline to correct behavior. Ours is not a system based on retribution.

Or, perhaps there’s a concern that the Board will find a removal to be an unreasonable penalty, but a long suspension to be within the bounds of reason. The agency might be trying to avoid a penalty mitigation on appeal by implementing a suspension rather than a removal. Although this rationale has more appeal than the first two, it still fails on analysis:

  1. There is an exceedingly fine line between an act of misconduct that warrants removal and an act of misconduct that warrants a 45-day suspension. Unfortunately, we don’t really know where that line is until at least two of the Board members agree where it should be. Maybe it’s time in the civil service to roll the dice a bit more. Hey, if Congress is going to beat us up for not firing enough people, at least if you have to take a mitigation of a removal to a suspension on appeal to the Board, you can blame MSPB instead of your agency. Who knows; if you do that maybe The Hill will pass some special laws to get your agency out from under those mean old Board members. Avoiding blame is an important part of political life, you might have noticed.
  1. Think strategically like a gambler:
  • If you remove the guy instead of suspending him, if your roll of the Douglas-dice results in the employee staying fired, you have one less bad employee to worry about.
  • If you remove the guy instead of suspending him, if your roll of the Douglas-dice results in the penalty being mitigated to a suspension, you’re out maybe 100 days of back pay and perhaps some attorney fees.

Is the chance of getting rid of a bad employee permanently worth the risk of having to pay out maybe $25,000 to $50,000 if the removal happens to be mitigated on appeal? Thank goodness that’s not a decision that those of who claim to be advisors have to make. In my career, I’ve certainly run into senior managers who would have happily risked that amount to get rid of an unproductive toxic individual.

Whether you work at DHS or some other agency, if you’re still looking for a New Year’s resolution, make it to avoid long suspensions. If the dude doesn’t deserve to be fired, suspend him for no more than 14 days. If he indeed deserves more than a 14-day suspension, fire him. In the long haul, you’ll be the happier for it.

Wiley@FELTG.com

If it’s Good Enough for College Football Players…

, ,

By William Wiley, January 18, 2017

If you watched many of the hundreds of college football bowl games recently, you might have noticed something I’ve not seen before. Apparently, there were at least a couple of senior superstars who chose not to play in their team’s bowl game to protect themselves from potential injury that would have reduced their respective values in the upcoming drafts for the pro teams. In other words, they sacrificed the benefit they would have provided to their team in the bowl for their own personal reasons.

There was banter among the talking head commentators as to whether such a self-centered non-team selfish decision was “good” or “bad,” whatever those relative terms mean in the world of college sports. “What about team spirit?” some said. “If it hadn’t been for his teammates and coaches, they guy might not even be going in the pro draft. He owes them.” Others took a different path. “He’s got to look out for himself. There are millions of dollars at stake, perhaps even an entire pro career. He’d be crazy to put that at risk for the sake of a team he’s about to leave.”

My vote count certainly isn’t scientific, perhaps clouded by a bit of guacamole and light beer, but I think that I counted more commentators opting for the “take care of yourself” approach over the “take care of the team that brought you here” option. It seems those former pro players who announce the college games learned the hard way that taking care of Number One should be a player’s Number One priority. The Spock/Kirk-view that “the needs of the many outweigh the needs of the one” is mainly for science fiction.

Apparently, the now-former Chairman of MSPB shares the opinion of the majority of the sports commentators. As you long-time readers of this here newsletter know, our profession has been concerned about the impending end of the Board Chairman’s appointment. MSPB is a three-membered board. Currently, it has a position that has been vacant for well over a year, leaving just two members. The good news is that even with only two members, MSPB has been able to issue final opinions and orders because it has a quorum. However, with only one member, the Board’s judges can continue to do their work, but MSPB cannot issue final orders without a quorum of Board members.

And as of January 7, we no longer have a quorum at MSPB. Effective that week, Chairman Grundmann cast her last vote as a Board member, then quit. Her term was set to expire on March 1, and most Board watchers expected her to serve to that date, as had her predecessors. However, Ms Grundmann decided to depart before the end of her term, leaving the Board unable to issue any final orders until President Trump’s replacement nominee is confirmed by the Senate.

Though unlikely given the notorious confirmation process, it is conceivable that President Trump could have a replacement Chairman ready to take over soon after March 1. If that were to occur and had Ms Grundmann served out her term, the no-quorum period of no-votes at MSPB might have been short if at all existent. Given the former-Chairman’s early departure, now the civil service is guaranteed a period of several weeks of an inoperative MSPB no matter how quickly the President and Senate work to appoint new members. In 2015, the Board issued about 60 final decisions per week. If it were at the same pace for this year, that would equate to about 300-350 final orders that could have been issued that will not be issued.

I leave it up to you, our wonderful readers, to decide if that’s “good” or “bad.” Here at FELTG, we certainly do not claim to know nearly as much about teamwork as do those guys who announced the bowl games, and we take no position on the former Chairman’s personal decision. If there is a fault here, it is that Congress did not foresee that Board members will be making personal career decisions, and that there should be a statutory mechanism in place to prevent the lights being turned off at MSPB (or FLRA or EEOC or NLRB) headquarters when something like this occurs. Officially, we wish Ms Grundmann the best in the future, wherever that might take her. People are entitled to make personal career decisions and to determine the value of teamwork.

At the same time, we feel sadness for those appellants and agencies represented in those 300 or so appeals who will have to wait extra weeks or months for a final decision in their cases. Football teams have backup players to replace those who choose not to play. As Congress assesses the future of oversight agencies like the Board, hopefully it will give consideration to developing a system to prevent this sort of delay from occurring again. Our country is too important to allow civil service accountability to be delayed when an appointee’s personal career decisions diminish the ability of the team to continue to function. Wiley@FELTG.com

EEOC Seeks Public Input on Revising Enforcement Guidance on Harassment Complaints

, ,

By Deryn Sumner, January 18, 2017

Following up on the report issued in 2016 by the EEOC’s Select Task Force on the Study of Harassment in the Workplace, on January 10, 2017, the EEOC announced that it was seeking feedback on a proposed Enforcement Guidance on Unlawful Harassment.  The Commission last issued guidance on harassment claims in June 1999, with its issuance on Vicarious Employer Liability for Unlawful Harassment by Supervisors.  Although the Supreme Court’s decision in Vance v. Ball State, 133 S.Ct. 2434 (2013) narrowed the definition of who is a supervisor for purposes of establishing liability, the Commission’s 1999 Guidance was only updated with a small text box at the top noting what the Supreme Court held in its decision.  This is the same tactic the Commission has taken with its guidance on disability discrimination, which was issued years prior to the passage of the ADA Amendments Act of 2008.

The EEOC seeks public comment on the proposed enforcement guidance, which is intended to replace all the current enforcement guidance on harassment issued by the Commission.  The proposed guidance refers to the EEOC’s Select Task Force in the introduction section and sets out the applicable and most recent case law regarding harassment in the workplace.  The proposed guidance clearly states the EEOC’s position that claims of gender identity discrimination, including discrimination based on transgender status, as well as claims of sexual orientation discrimination state claims of sex discrimination.

The proposed guidance sets forth examples of how claims of actionable harassment must be linked to an employee’s membership in a protected class.  For example, derogatory comments about an employee’s national origin could help make an actionable claim of harassment. A workplace altercation because an employee’s girlfriend broke up with him to date someone else in the workplace is not.  As the proposed guidance states, “Although an employee’s protected status need not be the only basis for the harassment, the EEO statutes do not prohibit harassment unless it is based, at least in part, on a protected characteristic.”

The proposed guidance also includes a section on liability standards, guidance that is needed after the Supreme Court’s decision in Vance. It also includes four sub-sections under the heading of “Promising Practices,” to discuss how to avoid complaints of harassment in the first place.  These include “Leadership and Accountability,” “Comprehensive and Effective Harassment Policy,” “Effective and Accessible Harassment Complaint System,” and “Effective Harassment Training.”  These compliment the recommendations of the EEOC’s Select Task Force in the report issued last year, and it is heartening to see the Commission continue to work to update its Guidance.

If you’d like to submit your own comments, you have until February 9, 2017 to do so here: https://www.regulations.gov/docket?D=EEOC-2016-0009. Sumner@FELTG.com

[Editor’s note: if this topic interests you, join FELTG for a very timely webinar on hostile work environment harassment on Thursday, February 2.]

Another Reason to Do Away with Letters of Counseling

, ,

By Deborah Hopkins, January 18, 2017

Within the first few minutes of our FELTG onsite class UnCivil Servant: Holding Employees Accountable for Performance and Conduct, Bill and I ask a question of the attendees:

Which of the following are “disciplinary” actions?

  1. Letter of Caution
  2. Letter of Warning
  3. Admonishment
  4. Letter of Counseling
  5. Letter of Expectation
  6. Reprimand
  7. Suspension
  8. Demotion
  9. Removal
  10. Reassignment
  11. Placement on a PIP
  12. Denial of a WIGI

The answers we get often make us cringe. We’ll give you ten points if you can pick them out without error. Go ahead, take a look…we’ll wait…and the answer is…there are only FOUR disciplinary actions on that list: Reprimand, Suspension, Demotion and Removal. That’s it. Everything else on the list is NOT a disciplinary action, which means it holds ZERO significance in progressive discipline.

Items 1-5 have no legal value and often create problems for the agency that might not exist were they not implemented. Consider the recent EEOC case Meaghan F. v. SSA, EEOC Appeal No. 0120152932 (November 2, 2016). Here’s what happened: SSA employee Meaghan F. suffered from migraine headaches and had exhausted all of her annual leave and sick leave and had used more than 240 hours of Leave without Pay (LWOP). She provided a doctor’s note that said she might be absent “from time to time” in the future if her migraines worsened.

Not very specific medical documentation, is it? The supervisor didn’t think so either, so he held a counseling session about her attendance and told her the medical information she provided was insufficient. We don’t have a problem yet; a good supervisor should talk to an employee about her attendance if it’s becoming a problem. But the supervisor took it a step further and issued a Letter of Counseling about the problem, which he placed in her personnel file. So, what did the employee do? She filed an EEO complaint and said the letter was discriminatory because she had a disability (migraine headaches) that caused her leave issues.

You’ll be happy to know that the agency prevailed on this, as the EEOC held that a letter of counseling is not discipline and that the supervisor had a legitimate, nondiscriminatory reason for asking for more specific medical information. But, that didn’t stop the agency from having to go through the lengthy EEO process, which now takes a good two to three years on average.

Though it’s speculation on my part, I can’t help but wonder, had the supervisor not issued the letter of counseling and put it in the OPF, whether the employee would have filed a discrimination complaint. I guess we’ll never know, but this case underscores what we’ve been telling supervisors for years: sometimes the less you do, the better off you’ll be. Hopkins@FELTG.com

The Good News About the MSPB Chairman Quitting

, ,

By William Wiley, January 18, 2017

Having worked inside of MSPB for nearly a decade, I know how this stuff works. As a Member’s departure gets closer, tough issues with significant impact that have been hanging around undecided get decided. It’s now or never when an adjudicator is about to turn out the lights, much like happens at the US Supreme Court in early summer as the Court’s term for the year draws to an end.

As you may have read about in other parts of this newsletter, MSPB’s Chairman resigned on January 7, leaving the Board without a quorum and unable to operate until the Senate confirms replacements. That means that if there were any contentious issues that had been sitting around, the members had to get them out before that date, or perhaps lose the opportunity to have their voices heard at all.

With that as background, here are decisions that came out the first week of January that, by my guess, were causing some heartburn within MSPB. A couple reverse major precedence in some aspect of federal employment law. Although their impacts are limited to relatively small groups of cases, the effects are significant in those situations, and undo years of precedence contra:

Firing Long-term Temporary Employees:  For many years, individuals employed in a series of temporary appointments accrued MSPB appeal rights even with a few days’ break in service between appointments. That theory was known as a “Continuous Employment Contract.” See Roden v. TVA, 25 MSPR 363 (1984). Well, that’s no longer the rule. From now on, to be entitled to appeal a removal from a temporary appointment, the employee must have more than a year of continuous uninterrupted employment. Winn v. USPS, 2017 MSPB 1.

Settlement Enforcement:  For many years, MSPB would enforce settlement agreements only in cases in which it found that it had jurisdiction over the underlying action on appeal. That principle has now been reversed. The Board will enforce settlement agreements entered into even if it has not established that it has jurisdiction over the underlying matter. Delorme v. DoI, 2017 MSPB 2.

Appellant’s Right to a Hearing:  The Federal Circuit has long held that an appellant is entitled to a hearing, and that the Board may not issue a summary judgment decision without a hearing, even if there are no material issues of fact in dispute. Crispin v. Commerce, 732 F.2d 919 (Fed. Cir. 1984). While the Board’s precedent in this area has not always been consistent or clear, the clarified rule now is that an appellant is not entitled to a hearing when his discrimination claims are deficient as a matter of law. Sabio v. DVA, 2017 MSPB 4.

Sometimes it takes a while for things to happen. I remember a country and western song from my college days that said something like, “All the girls get prettier as closing-time comes around.” Well, the first week of this month was closing-time at the Board. Pretty or not, these are three important decisions that every practitioner needs to know. Wiley@FELTG.com

EEOC Issues its List of Notable Cases for Fiscal Year 2016

, ,

By Deryn Sumner, January 18, 2017

A few weeks ago, someone stopped by my office and asked me to list what I considered the most important cases issued by the EEOC’s Office of Federal Operations in 2016.  And I’m pretty sure I looked up from the pile of work I was trying to complete before the holidays with a dazed expression on my face, until the person walked away not expecting an answer.  When I came back to the question a few days later, I still couldn’t come up with much a response.  Past years have seen groundbreaking decisions that expand the coverage of Title VII and grant standing to more employees, like Mia Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (holding that claims of transgender discrimination state claims of sex discrimination) or David Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015) (determining that sexual orientation claims should be processed as sex discrimination claims).

But looking back on 2016, I could not easily identify such notable cases.  Luckily, the EEOC did the work for me and a few days ago issued Fiscal Year 2017, Volume 1 of its Digest of Equal Employment Opportunity Law.  You can find the full digest here: https://www.eeoc.gov/federal/digest/vol_1_fy2017.cfm.  Since the cases were pulled from the Commission’s fiscal year, which runs from October 1, 2015 through September 30, 2016, it does include some 2015 cases.  But for our purposes (and since I did see fit in FELTG’s December 2015 newsletter to expound upon my list of notable OFO cases from 2015), I’ll focus on the 2016 cases the EEOC included.  We’ll call it the notable cases of the notable cases of 2016.

First up, in Candice B. v. Department of Homeland Security, EEOC Appeal No. 0120160714 (June 1, 2016), the EEOC certified a class action defined as “all women who were required to take PCE-1, PCE-2, and the FCS and failed to pass the push-up qualification standard at any stage.”  We discussed this case in more detail in the July issue of the newsletter.

In cases involving high awards of non-pecuniary compensatory damages, the Commission affirmed an award of $192,500 to the complainant in Ervin B. v. USPS, EEOC Appeal No. 0720150029 (March 15, 2016).  There, the Commission found the award appropriate based on “the shock, embarrassment, and great upset in being placed in off-duty status, destroying his unblemished record of not getting in trouble with criminal law and what this did to his identity, the humiliation, despondency, extreme anxiety and ruminations resulting from the criminal action and being booked, having an invasive strip search, and being put in a holding cell; the damage to his reputation among neighbors, co-workers and customers on his route because of the criminal action, the worry, hysterical crying spells, and fear of being convicted and having his life destroyed as he knew it, the financial struggles from being put in off-duty status for an extended period, his loss of a sense of having a new start when shortly after returning to work he received a retaliatory seven day suspension, the loss of self-worth and self-esteem and going from jovial to withdrawn, the sleeplessness, nightmares, depression, damage to his marriage and PTSD stemming from the Agency’s actions, the lessening in control of his glucose levels partly as a result of the discrimination, not being able to work for extended periods, and the emotional damage which continues to this day.” This case is a prime example of how even awards at the higher end of the range fail to adequately compensate an employee for what they have experienced.

In Glynda S. v. Department of Justice, EEOC Appeal No. 0120133361 (February 23, 2016), the EEOC issued default judgment in the complainant’s failure because the agency waited over a year to file a Final Agency Decision which the Commission found created an “extreme delay [which] stranded Complainant in a procedural ‘no-man’s land’ wherein she had no recourse within the administrative EEO process until the Agency issued its final decision.”  The Commission has not consistently held agencies accountable for delays in timely completion of investigations, or issuing final agency decisions and final actions, but found it appropriate to grant default judgment in this case because, in part, the Commission had previously warned the Department of Justice that delays in issuing final decisions were concerning.  See Sylvester v. Department of Justice, EEOC Appeal No. 0120101890 (November 18, 2010).

And finally, in Ivan V. v. Department of Veterans Affairs, EEOC Appeal No. 0120141416 (June 9, 2016), the Commission found that a supervisor engaged in per se retaliation when he asked the complainant if he planned to “play the Latino card” while investigating a complaint from another employee.  The Commission found that these comments could have a chilling effect on the EEO process and constituted a per se violation of the anti-retaliation provisions of Title VII.

Watch this space to see what 2017 brings us from the Office of Federal Operations.

Sumner@FELTG.com