Your Life Just Got Better (and Maybe Longer)

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By William Wiley, December 14, 2016

Earlier in this newsletter, we explained how the recently enacted “Administrative Leave Act of 2016” limits the length of time that an agency can keep an employee on paid leave while an investigation is being conducted.  We also noted that an employee who has left the agency during the course of an investigation must have his OPF annotated after departure if the results of the investigation include “adverse findings.” Clearly, these are important aspects of the legislation for those legislators who proposed the bill initially. However, tucked in this legislation is a much more important change to our business of federal accountability, a change that affects every supervisor and every workplace in government much more than do the restrictions on time limits for investigations and annotations in retired OPFs stored in some vault in a mountain in Virginia:

Notice Leave

The situation has been this for nearly 40 years:

  1. The law requires that a bad employee be kept on the payroll for at least 30 days after he is given notice that he is probably about to be fired.
  2. OPM, in a snit of ridiculous, short-sighted, rule-making, has in force a regulation that says that normally an employee who has been given notice of an impending removal is to be kept in her regular position.
  3. Therefore, agencies who don’t think things through keep bad employees in the federal workplace where they have access to government computer systems, coworkers, and members of the public during the most stressful of moments one can imagine, with nothing to lose and unbounded harm that can be caused. All you need for a mass killing in a federal workplace is a depressed individual with an automatic rifle carrying a valid government ID badge and a proposed removal notice.

According to the Bureau of Labor and Statistics, two people are killed by a coworker every workday in America. You would think that the policy writers at OPM would have more concern for the lives of their fellow civil servants.

Add to this foolishness the decisions of some senior managers that bad employees should not be placed on administrative leave during the 30-day notice period that follows a proposed removal. This combination of poorly-thought-through policy mandates creates a burning fuse of potential workplace death that could easily be avoided if those who made the policy worked on the front lines where their lives would be in danger.

But finally, we have relief from this awful policy combination. The new law creates a form of excused absence to be known henceforth as Notice Leave (NL).  It provides authority for an agency to place the bad employee into a paid excusal status for anyone whose removal has been proposed. The length of NL, unlike the restrictions placed on IL, is “the duration of the notice period.”

We’ve been fighting for this sort of protection for the federal workplace so long that they should have named it “FELTG Leave.” But we’ll take comfort in knowing that maybe somebody who is reading this newsletter today will be around for another edition because of the agency’s authority to get people out of the workplace once their removal is proposed, no matter what they call it.

Be careful, though.  The law lays out several criteria that have to be met before NL (aka FELTG-L) can be enforced.  If your agency’s leadership fails to see the importance of getting bad employees out of the workplace once their proposal is removed, your policy makers may make the mistake of making it difficult to authorize NL.  So stay tuned. Here at FELTG we have your back and will soon be giving specific recommendations to you and your policy makers as to how to handle this new flexibility for the greatest benefit, in spite of what some might see as road blocks to fully exploiting its benefits.

Hey, Congress. Thanks for the early Christmas present. Whether you realize it, or not. Happy Holidays right back at you.

Wiley@FELTG.com

EEOC Understands the Problems Agencies Can Have Implementing Decisions

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By Deryn Sumner, December 14, 2016

I know firsthand the frustration agency representatives can experience when they are being asked about when a payment under a settlement agreement or administrative judge’s order will be made, and they can’t give a clear answer, because their agency isn’t the one that actually makes the payment.  Many agencies rely on other entities such as DFAS or Department of Treasury to effectuate payments, and it can be very hard to get information about when the payments will be made when it’s not in your agency’s control. Or, you are being asked to change personnel records or leave records from many years ago, and those records have been archived or kept in a system that is no longer used by the agency.

The EEOC understands.  In Kristy E. v. Department of Air Force, EEOC Petition No. 0420160005 (November 18, 2016), the petitioner requested enforcement of the EEOC’s prior decision and an award of $75,000 in sanctions for the continued delay in obtaining the ordered relief.  This case has a convoluted and lengthy procedural history.  As I talk about elsewhere in this month’s newsletter, the EEOC made it a priority in fiscal year 2016 to resolve older cases on the docket.  Here, the complainant filed a formal complaint in 2004, received default judgment in her favor in 2008, and is still dealing with this case over a decade after it began.  The Agency rejected the Administrative Judge’s (AJ’s) order granting sanctions and ordering relief and filed an appeal in 2008.  The Office of Federal Operations took until 2015 to issue a decision on the appeal and ordered the Agency to implement the AJ’s decision.  The Agency requested several extensions of time to implement the ordered relief, noting that restoring the ordered 675.75 hours of leave posed a challenge as the employee’s leave records had since been archived.  The employee eventually filed a petition for enforcement and requested monetary sanctions for the delay.

The Commission, although it granted the petition for enforcement and ordered the Agency to comply with its prior Order, did give the Agency a break, and stated:

As we noted in our November 19, 2015, letter, in situations like this, where records have been archived, it can add weeks or even months to an agency’s compliance efforts. As we further noted, the Agency provided good cause, given that it lacked access to Petitioner’s salary records. We note that the Agency, throughout the compliance process, stayed in contact with both the Commission and Petitioner concerning its efforts to obtain compliance with Part 6. Therefore, we decline to sanction the Agency. Also, with respect to Petitioner’s request that the Agency be sanctioned with an additional damages award of $75,000, we note that such a sanction would amount to punitive damages, which are unavailable against the government or a government agency. See Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981(A)(b)(1); Jones v. Dep’t of Health and Human Serv., EEOC Request No. 05940377 (January 23, 1995) (citing Graham v. U.S. Postal Serv., EEOC Request No. 05940132 (May 19, 1994)).

The takeaway for agencies from this decision: keep in communication with the employee and the assigned compliance officer regarding attempts to comply with the Commission’s orders and if there’s a specific reason for the delay, such as problems obtaining archived records or effectuation of payments being outside of the agency’s control, communicate that.  The Commission understands the challenges that can come along with implementing these orders.  Sumner@FELTG.com

EEO Complaint-ing a PIP? No Dice.

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By Deborah Hopkins, December 14, 2016

A couple of weeks ago, Bill and I held a brand-new training class in Atlanta: Developing and Defending Discipline (next coming to San Diego February 28 – March 2).  One of the questions that came up was a question we get frequently enough that I figured it was worth a newsletter article.

Here’s the question: Can an employee file an EEO complaint about being put on a Performance Improvement Plan (PIP)?

Here’s the short answer: an employee can file an EEO complaint for just about anything.

But, here’s the more fulsome answer: a PIP is a preliminary step to taking a personnel action and, in most instances, does not constitute an adverse action sufficient to render an employee aggrieved. See Lopez v. Agriculture, EEOC No. 01A04897 (2000); Jackson v. CIA, EEOC No. 059311779 (1994) (holding that performance improvement plans which are not placed in the employee’s official personnel folder do not constitute adverse actions).

That means that if an employee files an EEO complaint and the basis of the complaint is something like, “I was placed on a PIP because of my race [and/or sex, age, religion, national origin, disability, etc.],” then the agency should not accept this as a valid EEO complaint because this is not a personnel action that forms the proper basis for a complaint.  Placing an employee on a PIP is what we in the business refer to as a preliminary step (see Lopez, above).

That’s right, EEOC seems to side with management on this one. In the Analysis that accompanied the 1992 issuance of EEOC regulations at 29 CFR Part 1614, EEOC explained: “We intend to require dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a part of any official file on the employee.”

In other words, EEOC itself says the PIP does not “affect the person” because it is not a personnel action; is simply a chance for the employee to show she can do her job. If she’s focused on filing an EEO complaint instead of meeting her performance standards during the PIP period, I think we’d all agree that the chances she’ll be able to successfully survive the PIP are pretty low.

If a federal employee comes to us (or to any of our instructors who are attorneys) and asks us to represent him in an EEO complaint, and we find out he is filing a complaint for discrimination because he was put on a PIP, our reply is always, “Get back to work; you have a job to do.”  PIP time is not the time to file an EEO complaint; you know it’s true when the EEOC has made an affirmative statement on the topic.

As an aside, someone could initiate a claim that being placed on a PIP was an act of reprisal for engaging in protected EEO activity. The reprisal standard makes it illegal “to discriminate” against someone for engaging in the EEO process or for speaking out against discriminatory policies, and putting someone on a PIP because of such activity is discrimination. While a supervisor needs only to articulate a reason to initiate a PIP, that supervisor will need solid evidence to combat a reprisal claim.

Also worth noting, a complainant could use her placement on a PIP as evidence toward a hostile work environment claim, though as stated above the PIP alone isn’t sufficient to initiate the EEO complaint.

And finally, on another related matter, if an employee alleges the PIP was initiated in retaliation for protected union activity or whistleblower activity, the supervisor will also have to defend those claims under the related elements of retaliation.

Remember, a PIP is not an adverse action, so documentation of the employee’s unacceptable performance as a reason for initiating the PIP should meet that evidence standard necessary to defend against the retaliation claims. Keep your notebook close, supervisors, and with these things in mind, PIP away! Hopkins@FELTG.com

EEOC Issues Updated Enforcement Guidance Regarding National Origin Discrimination

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By Deryn Sumner, December 14, 2016

The EEOC issues guidance on various topics related to discrimination, including harassment, use of arrest and conviction records in employment, and disability discrimination.  As Supreme Court cases and new laws change the landscape of discrimination law, the guidance needs to be updated to reflect these changes.  This is a large undertaking as the guidance is considered official EEOC policy, and the Commission seeks public comment and must obtain approval from the majority of the Commissioners before issuing the guidance.  In the last three years, the EEOC has updated and issued three enforcement guidance areas: pregnancy discrimination and related issues, retaliation and related issues, and now, in November 2016, national origin discrimination and related issues.  Although the enforcement guidance relating to disability discrimination now contain a note stating that the ADA Amendments Act of 2009 made significant changes, the EEOC has not yet issued revised guidance regarding disability discrimination.

The EEOC updated the national origin discrimination guidance for the first time since 2002.  Along with the guidance, it issued a question and answer series and a small business fact sheet.  I find the question and answer series to be very helpful in providing advice to managers and employees, as the questions address likely hypotheticals and are written in plain language.  The EEOC sought public comment in July 2016 before issuing the final revised guidance.

The guidance includes an overview, a section on what national origin discrimination is and how it can intersect with other bases of discrimination, and issues relating to language, accent, and citizenship issues. Although not an issue normally faced in federal sector employment discrimination cases, the EEOC does make clear that Title VII prohibits discrimination against individuals regardless of their citizenship or work authorization, and that immigration status is not relevant to the underlying merits of a charge of discrimination.  Further, threats to report an employee’s immigration status can constitute retaliation if the employee has engaged in protected EEO activity.

I found the section on intersectional discrimination to be the most interesting, because often when consulting with clients or potential clients, it can be difficult to parse through the exact basis that is leading to the disparate treatment or harassment.  For example, a female employee who is a practicing Muslim from an Arab country who objected to workplace comments regarding her religion or country of origin may face discrimination for any one of, or perhaps multiple protected bases.  The Updated Enforcement Guidance regarding national origin discrimination can be found here:

https://www.eeoc.gov/laws/guidance/national-origin-guidance.cfm.

Sumner@FELTG.com

Draining the Discipline Swamp

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By William Wiley, December 5, 2016

Dear President-Elect Trump:

Hey, how’s it going? Getting settled into that commander-in-Chief-to-Be role? Having fun answering phone calls and sending out tweets 24/7? Ready to run the Executive Branch? Trust me; we here in the federal employment law community are just as excited as you must be by this prospect.

And here at little old FELTG, we stand ready to help you, in any way we can. We are All Civil Service / All the Time, and we just love to act all smart and give out advice, whether the advice is asked for, or not.

You might remember that last week, we dropped you a public note about how screwed up the current oversight functions are within our beloved civil service. There are at least seven avenues of review if an employee claims to have been mistreated by his employing agency (eight if you count our previous typo). Their jurisdictions may or may not overlap, depending on exactly the claim being made, their procedures are all different, and they each have their own turf to defend. We suggested oh-so-delicately that you add fixing this quagmire to your to-do list once you take the civil service oath.

Interesting Fact: The very first law passed by Congress, Law Number One as they say over at the National Achieves, was that those of us lucky enough to be chosen to work for the United States government must swear allegiance to it. That oath you’ll be taking on January 20 is the very same oath that every civil servant has ever taken. Welcome to the club.

In response to our article last week about the oversight mess you’re inheriting, we received figuratively thousands of demands and pleas that we provide the answer to this mess. It’s one thing to point out a problem; it’s a higher calling to propose a solution. Never one to duck a higher calling, here we go with the FELTG Fix for the Problem of firing a bad federal employee.

Stay with us here; this gets pretty darned deep.

The Root of the Problem:  A foundational component of our civil service is that once an employee completes her probationary period and reaches a career status, she is vested in her position with the government. The courts, including the U.S. Supreme Court, have historically acknowledged that a career federal employee has a “property interest” in continued employment.

In our great country, an individual retains his property until it is either taken from him or he disposes of it himself (as a gift or as a sale). A taking occurs when someone breaks into your home and removes that big flat screen TV from your Man Cave wall. The more civil approach to a taking is when one person sues another person, demanding property ($) to right some wrong. Separately, the state can take away a citizen’s property by demanding the payment of a fine such as a parking ticket. Unlike an illegal taking (like a burglary), legal takings are adversarial and fought out in court, using controlling law, evidence, and argument before a neutral fact finder. This is known as the “adversarial” process; a process whereby property is taken away from someone in a fair and just manner.

When a federal agency fires one of its career employees, it has taken away that employee’s property. Therefore, to do it legally, the agency is required to subject itself to an “adversarial” process, seven of which we noted in last week’s article. In those processes, the agency has the burden of proving that the employee is at fault, with the employee having the commensurate right to argue that he is faultless. In a fault-based system like this, we need investigators, arbitrators, judges, boards, commissions, authorities, lots of time and money, and lots and lots of lawyers.

Not only is the adversarial world expensive and time consuming, it doesn’t always produce the right result. The side that happens to have the most money or best advocate may win an appeal, even though the other side should have won. Sometimes the government will pay money to “settle” a case, even though it is in the right, but doesn’t want to dedicate the adversarial resources to prove it. After 40 years of the current civil service law, agency removals are set aside on appeal at a rate of one-in four or one-in-five. That’s a dismal success rate when you’re talking about fairness to an employee and government money that is being wasted.

The Fix:  About 150 years ago, Germany ran into a similar problem in the workplace. Individuals were getting injured at work without any assurance that their injuries would be compensated. If the injured individual felt that the employer was at fault, he had to hire a lawyer, bring suit, and then he may or may not have been successful in receiving damages. Any damages awarded, of course, had to be shared with the successful attorney who represented the injured worker rather than go to the worker who no doubt needed the money more. Individuals who could not afford a lawyer became a drain on society if they could no longer work, often requiring years of charity to survive.

In the late 1800s, Count Otto von Bismarck came up with an alternative. He pressed through a law that characterized on-the-job injuries as “no fault” events, thereby removing them from the adversarial world of lawsuits. Today, in our country we call programs like his “workers’ compensation programs.” You get injured on the job, you get compensated without having to get all adversarial and prove fault.

Along those same lines of a “no-fault” process, our country (as do most all western countries) maintains the right of “eminent domain.” If the fed needs to build a road through your farm, it gets to take it if it compensates you for the property. You haven’t done anything wrong; there’s no fault when your private property is expropriated by the government for the public good. It’s just our legal way of acknowledging that Mr. Spock was onto something when he said, “The needs of the many outweigh the needs of the few.” The Wrath of Khan (1982). You have been relieved of your property in a non-adversarial manner: a sale, albeit a forced sale.

And, thus, our recommended fix. Do away with the adversarial nature of a firing a civil servant and convert it to an eminent-domain-like taking, based on the following precepts:

  • Every year of acceptable service that an employee completes entitles him to a year of ownership of his position.
  • Individuals who work for the government 20 years have 20 years of entitlement. Therefore, even if she messes up in year 21 and deserves to be fired, she has earned value in the 20 years she did good work.
  • An agency should be able to “buy back” a job from an employee. Just like the farmer required to give up (for pay) the south 40 for construction of a freeway, develop a formula for valuing a job held by a career employee – based on salary and length of service – and allow the government to remove the employee by paying the employee whatever the value is for his job. No need to prove fault. No reason to fight it out in an adversarial nature. The job is worth this much money. Here’s a check. The agency can now use the position for the public good by hiring a replacement.

And now I hear the nay-sayers:

“But Bill, won’t that cost a lot of money?” No, not compared to keeping a bad employee on the payroll through retirement or devoting resources to defend a removal in a risky adversarial forum.

“But don’t we need to ‘punish’ somebody?” No, we learned from Count von Bismarck’s approach that punishment is not necessary to achieve a desirable end, even if fault is somehow involved.

“But won’t this radically change what the civil service is all about?” No, I won’t give you “radical.” However, I’m OK with characterizing this no-fault approach as being a “fundamental” change.

More importantly, though, I think that it is a pragmatic change, a change designed to protect an employee’s rights to an encumbered position by setting a price tag on those rights while simultaneously allowing an agency the flexibility to simply and quickly manage the darned federal workforce. If we are to listen to the voices of many of our elected officials (and those who tried to become elected, but failed), something needs to be done about this quagmire, this swamp.  The civil service is seen by some as a stagnant pool of inefficient workers who cannot be fired.  While we strongly disagree with that view here at FELTG, we have to accept that this is the world in which we live. We need to take steps to deal with it instead of just saying that they are all wrong, we are all right, and things should stay the same as they always have been.

The current oversight of the civil service removal process is adversarial, expensive, and time consuming. Converting to a no-fault buy-back process protects the employee’s rights to the position he has earned while allowing for the prompt secure removal of non-productive individuals. Yes, this approach changes in some ways a fundamental structure of our civil service system.

But maybe a fundamental structural change is exactly what is needed. Wiley@FELTG.com

The Oversight System Quagmire

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By William Wiley, November 29, 2016

Dear President-Elect Trump:

We have so much advice for you here at FELTG. You see, we’ve been messing around with the civil service for nearly 40 years. We’ve figured out a few things because we’ve seen a few things. Here’s another little mess for you to think about cleaning up, after you get that wall going and all those “bad” people deported.

At the heart of a civil service system are built-in protections to prevent managerial overlords from unfairly harming hard-working career federal employees. Put simply, if a civil servant believes that he has been treated unfairly, he should be able to complain to someone with oversight authority who will consider the facts and decide whether the employee has been treated unfairly.

The most serious unfair treatment involves a manager taking away the salary of an employee. Here are the options that an employee has today if she believes that a manager has unfairly taken away part of her salary:

  1. If she believes that the manager was motivated to take away her salary because of her RACE/SEX/AGE/etc., she can file with the US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
  2. If she believes that the manager was motivated to take away her salary because of her UNION ACTIVITY, she can file with the FEDERAL LABOR RELATIONS AUTHORITY.
  3. If she believes that the manager was motivated to take away her salary because of her WHISTLEBLOWING ACTIVITY, she can file with the US OFFICE OF SPECIAL COUNSEL.
  4. If she believes that the manager was motivated to take away her salary because of her RIGHTS UNDER A UNION CONTRACT, she can file with an ARBITRATOR.
  5. If she believes that the manager was motivated to take away her salary because of her UNION ACTIVITY, she can file with the FEDERAL LABOR RELATIONS AUTHORITY.
  6. If she believes that the manager was motivated to take away her salary because of her STATUS AS A VETERAN, she can file with the US DEPARTMENT OF LABOR.
  7. If she believes that the manager was motivated to take away her salary in violation of her DUE PROCESS RIGHTS, she can file with the US MERIT SYSTEMS PROTECTION BAORD.
  8. If she believes that the manager has erroneously set her salary low in violation of her RIGHT TO PROPER COMPENSATION, she can file with the US OFFICE OF PERSONNEL MANAGEMENT

Of course, there are some minor tweaks to these employee rights. For example, the union must approve the employee’s invocation of arbitration to resolve a grievance, and there are dollar limits in place for other appeal rights. Still, the bottom line is that there are eight separate independent civil service oversight agencies, each with its own staff, official seal, and unique procedures, that have the responsibility of resolving issues of fairness that arise between a civil servant and his employing agency.

You want more craziness? Most of these oversight agencies are limited as to what they resolve when an employee complains about unfair treatment. They cannot resolve any general mistreatment issues, only issues within their jurisdiction. For example, if an employee complains to EEOC about mistreatment, even if EEOC concludes that the union contract has been violated, it is without the authority to provide the employee any relief. If an employee complains to FLRA about mistreatment, even if FLRA concludes that the employee has been mistreated because of whistleblowing, it is without the authority to provide the employee any relief.

I’m not finished with the craziness. The general view when there are several possible oversight processes is that the employee gets one bite at the apple. Wherever you file first determines which agency and what procedures will control the employee’s complaint. However, if you think about it, an especially creative employee seeking redress of a single personnel action conceivably could complain about parts of the action to all eight oversight entities simultaneously.  I once explained that to a Congressman who responded, “If they’re that smart, they deserve to win their appeal.”

I can’t really argue with the logic of that layperson’s conclusion.

Look, Donald (may I call you Donald?).  The word is that you want to do away with over-regulation, that you want to “drain the swamp” of unnecessary government. We know that you have pipe lines, health care, and trade pacts on your list of to-dos. Well, here’s another one. Now that you see the problem, the solution should be clear. Replace this quagmire with a system that:

  • Makes it drop-dead easy for managers to hold civil servants accountable, and
  • Makes it drop-dead easy for civil servants’ rights to be upheld.

If our little training company can figure this stuff out, so can your administration. Wiley@FELTG.com

More FELTG Advice for our New President

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By William Wiley

Here we go again, acting all uppity by advising the new administration without being asked. Well, somebody’s got to do it, and if not FELTG, who else would dare?

Dear President-Elect Trump:

What took you so long?

While you’ve spent the past few years putting your name on all sorts of things, gallivanting around the country with your BFF Hillary Clinton, bragging about grabbing various body parts, we’ve been busy along with our readers trying to run the darned government. Now that your little holiday is over, welcome to the fight. So let’s get you busy.

You may have heard that a lot of people (e.g., Congress, the media, the public at large) believe that a lot of federal employees (e.g. 7% of 2.1 million civil servants) are poor performers. Although we’ve had a system in place for nearly 40 years to fire non-performers, it doesn’t seem to be working. I bet you’d like to know what’s wrong with it, wouldn’t you?

Well, you’re in luck. Here at FELTG, we know everything civil service. And there’s at least one thing wrong with the unacceptable performance system that you can fix by yourself on Day One without any help from that nasty old Congress.

Length of the PIP:  As just about everybody in the world knows, if a federal civil servant is performing badly, regulations require that the immediate supervisor initiate a Performance Improvement Plan to allow the employee to demonstrate whether he indeed can perform acceptably. Neither the law nor the CFR sets a specific minimum length for a PIP, thereby leaving it up to the discretion of the agency to decide what is reasonable.

And therein lies your first opportunity. Some of your agency managers have set foolishly long PIP periods. Think of it this way. In one of the companies you own, if you hired someone to work for you who was supposedly qualified to do the work, and you gave him a couple of months to get used to the job, if he couldn’t do it, how much longer would you give him to get better? Keep in mind, his salary is coming out of your pocket. You didn’t hire a trainee, someone you have an obligation to train. You’re not a charity. Seriously, how long would you keep him around?

Well, what if I told you that some of your managers have agreed to 90 days AS A MINIMUM?! That’s right; there are perfectly valid union contracts around government, agreed to by agency leadership, that guarantee employees who have already been identified as failing, another 90-day minimum period of time to get up to speed. Those managers are spending YOUR MONEY (actually, taxpayer money that you have been allocated by Congress) in ways they don’t legally have to, for reasons that make no sense. You should not allow that to happen.

Here’s how to fix it. On Day One, send a little memo to your OPM Director that says the following:

Dear OPM:  As soon as possible, if not sooner, amend 5 CFR Part 432 to state that agencies may establish PIPs for periods up to 30 days, and that exceptions must be pre-approved by OPM. Your Friend and New Supreme Commander (aka “The Performance President”), Donald J. Trump

Yes, some of our friends on the union side of the business will take offense at this mandate. By making this change to a government-wide regulation, you are taking the matter off of the bargaining table and preventing your unwise management negotiators from giving this away through negotiation. But with all due respect, and I certainly respect the role of the unions in the federal workplace, it is not their job to run the government. It is yours. And you can’t run an efficient, effective government if you can’t quickly deal with poor performers. So cowboy-up and on Day One send a message to all of us that you plan for your managers to hold their employees accountable.

Because if you don’t, some folks might start thinking that they should not have voted for the “You’re fired!” guy. Wiley@FELTG.com

Who’s in Charge?

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By Barbara Haga

Last December I wrote about several MSPB decisions that included “Christmas party” in the text.  I thought it would be reasonable this year to follow up to see what other decisions had been issued in the last year or so.  I expanded the search to include EEO cases and “holiday party.”  There was a lot to work within those results!

Who are these People?

In the case of Margorie L. v. Department of the Army, EEOC No. 0120142868 (January 8, 2015), the Army attempted to dismiss a complaint that included issues based on sexual harassment and reprisal.  The events on which the sexual harassment charges were based took place at a holiday party.  The holiday party took place on December 13, 2013.  When you read the information below I hope you are thinking what I did – who are these people and how could this kind of behavior be going on at an official function today?

The complainant was an Environmental Protection Specialist.  At the holiday party, a coworker introduced her to the audience at the event as a girl “who I know really likes to ‘Ride ‘em Hard.’”  The coworker also hung a sign around her neck that said “Ride ‘em Hard.”  The complainant asserted that agency managers were present at the event and no one intervened.  There were photographs of her wearing the sign that were posted on the agency intranet.  After the event, the complainant stated that numerous coworkers continued to make comments to her such as she would get promoted because she liked to “ride ‘em hard.”

The Army dismissed the complaint.  The agency’s position on the sexual harassment issue was that it was a single incident and that it took immediate and appropriate corrective action when it removed the photos from the intranet.  The EEOC reversed the decision dismissing the complaint.

In its most positive light I suppose one might think that the comments meant that she was tough on enforcing environmental regulations, but I think there’s enough double entendre there that most of us would understand that this also could mean something quite different.

“That’s just Cat being Cat”

Leevine “Cat” Williams worked as a Physical Science Technician at the Navy Drug Screening Laboratory facility in Jacksonville, FL.  The Navy removed him for conduct unbecoming with a list of specifications related to inappropriate contact with female coworkers.  The main issues in the case, and the specifications that were ultimately sustained, involved his behavior at a Christmas party on December 19, 2014 and other interactions with a coworker named Christine Bastin.

At the party a picture was taken of a group of employees.  Cat was standing behind the female coworker.  Christine reported that he grabbed and fondled her left buttock.  Cat testified that she was upset after the photo was taken and said to him, “Really, Cat, really?”  Immediately after the photo was taken Christine was crying and upset.  She reported to two coworkers what had happened and this information was shared with her supervisor who spoke to Christine personally.

After the party there was an investigation and several other employees gave statements about what they judged to be Cat’s inappropriate conduct.  One male coworker noted that he saw Cat’s hand on Christine’s waist while the picture was being taken and thought that was inappropriate.  Another female coworker reported that some months earlier Cat had brushed up against her, had come up behind her at one point, and had licked her ear.

The troubling part of this case was in the documentation regarding the second specification.  Christine had relayed a variety of complaints about Cat to her supervisor before the party.  She reported that he would look her up and down and make kissy faces to her; she also told her supervisor that Cat had said that “she needed to get laid” and that she needed to “find a sugar daddy.”  When she reported these things to her supervisor, her supervisor said “it was just Cat being Cat.”  Christine’s supervisor did offer to speak with Cat about his behavior and also explained that Christine could file a formal complaint, basically putting the onus on Christine if she wanted the supervisor to do something.  Christine said that she did not push the matter because she was probationary and was afraid of losing her job.

The supervisor’s reaction here is much too common.  The supervisor had a duty to act to inform Cat that his behavior was inappropriate.  From the other specifications in the action, it appears that there was ample evidence that his behavior was out of line not just with Christine, so the supervisor could have had the discussion without mentioning what she said.  Just because an employee doesn’t want to be identified doesn’t relieve the supervisor of responsibility for taking action to correct the misconduct.  Once you know about it, it’s on management to deal with it.

On another note, the agency’s removal included several specifications about old incidents and other complaints that were not substantiated.  There’s a lesson in this case about what should have been included as specifications and what should have been left out.  To wit, the judge found six of the eight specifications not sustained, upholding only those that related to the incidents discussed above.  They had two good specifications with good evidence and recent misconduct.  They muddied the waters with six that were weak –one didn’t even have the name of the person complaining about Cat.  Needless to say, with that many specifications not sustained, the removal was mitigated to a 90-day suspension.

It wasn’t just the failure of six of the eight specifications.  The judge’s decision points up that the supervisor’s failure to act had consequences down the road.  I don’t think I can say it any better:

“While the appellant’s conduct toward Ms. Bastin at the Christmas party was troubling and warranted disciplinary action, there are several mitigating factors which must be considered. First in my mind is the extent to which the agency’s failure to adequately address or correct the appellant’s pattern of behavior toward Ms. Bastin during the several months before this incident contributed to his behavior at the Christmas party. It is unfortunately the case that despite the appellant creating an uncomfortable and unwelcome environment toward Bastin for several months, no one within the agency had told him that his conduct was becoming a serious problem and may lead to discipline if it continues. This vacuum of leadership was made worse by the agency’s culture where workplace hug greetings among co-workers were an expected daily ritual and sexual banter was commonplace among co-workers. In my view, the agency’s permissive, hugging culture, along with management’s apathy toward “Cat being Cat” in the face of Ms. Bastin’s complaints about him sent the appellant exactly the wrong message about what sort of conduct he could likely get away with in the future. While such agency missteps in no way excuse the appellant’s behavior, especially at the Christmas party, such factors did send a confusing message to the appellant about acceptable conduct in the workplace and the impact of what he was doing toward Ms. Bastin.” (Williams v. Department of the Navy, AT-0752-15-0550-I-1 (2016)

Lesson for Management

If you are a manager or supervisor, you have some things to think about while you are making brownies for the party, wrapping the gift exchange package, or putting on your holiday finery.  If you see something happening at a holiday get together that isn’t appropriate, you need to step in to stop it.  You don’t need to be a jerk about it, but you do need to make clear that it is not acceptable and may not continue.  It won’t mean that an EEO complaint can’t be filed on the matter, but it will help reduce the agency’s liability in the case.  That’s the lesson from Margorie L.

If you haven’t dealt with issues like those reported in the Williams case, it’s not too late.  Management needs to be able to show under Douglas that the employee knew or should have known that what he was doing was not acceptable.  The Navy fell short there because they knew about the behavior and never told him it was not acceptable.  In other words, when you don’t enforce the rule, the rule doesn’t mean anything.

If you work in an environment where inappropriate conduct has taken place previously, just remember that when people are partying, potentially with alcohol involved, the likelihood of it happening again is going to go up.  So, get the word out to the group, or to individuals if there are just a few you worry about, that this year’s holiday party is going to be different.   Haga@FELTG.com

[Editor’s Note: Thanks to Barbara for bringing Williams to our attention. To get the facts straight, Williams:

  1. Grabbed a woman’s butt, and
  2. Licked another woman’s ear.

Yet the agency could not fire him because it had never told him that such behavior was inappropriate? Also, there was a “hugging culture” within the office? Each of these acts is a battery, the butt-grabbing being additionally a criminal sexual assault here in the great state of California.

No wonder people get elected who think that civil servants cannot be held accountable. Yes, management could have done more, but the greater fault in this case lies with the US Merit Systems Protection Board.]

EEOC Survives Motion to Dismiss in Federal Court on Claim of Sex Discrimination

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By Deryn Sumner

In a decision issued on November 4, 2016, the U.S. District Court Judge in EEOC v. Scott Medical Health Center denied the defendant’s motion to dismiss the case and credited the EEOC’s argument that claims of sexual orientation discrimination are claims of sex discrimination under Title VII.  As we’ve talked about several times in this newsletter, the EEOC first articulated this argument in a decision issued by the EEOC’s Office of Federal Operations, Baldwin v. Department of Transportation, Appeal No. 0120133080 (July 15, 2015).

The defendant’s motion to dismiss centered on two arguments: first, that the EEOC’s lawsuit was untimely and that the EEOC failed to meet administrative procedural requirements prior to filing.  The District Court addressed each requirement in turn and found that the EEOC had complied with the necessary procedural requirements and timely initiated the lawsuit.

The defendant’s second argument was that the lawsuit failed to state a claim because Title VII does not prohibit discrimination on the basis of sexual orientation. Considering the EEOC’s response in opposition, the U.S. District Court judge distilled the argument to be “whether, but for Mr. Baxley’s sex, would he have been subjected to this discrimination or harassment. The answer, based on these allegations, is no.”  The complaint alleges that the employee’s supervisor subjected him to verbal slurs based on his sexual orientation and made offensive statements and asked highly intrusive questions of the employee regarding his sex life.

The District Court Judge’s decision addressed the prior Supreme Court precedent and noted the recent district court decisions in other jurisdictions before concluding, “That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate. Because this Court concludes that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination ‘because of sex,’ Defendant’s Motion to Dismiss on the ground that the EEOC’s Complaint fails to state a claim for which relief can be granted will be denied.”

The EEOC’s argument that sexual orientation claims are claims of sex discrimination under Title VII continues to be successful in district court litigation.  It remains to be seen if these efforts will be sidelined in the coming months by the incoming administration and Congress. Sumner@FELTG.com.

Agency Legacy Mistake; Board Misplaced Mitigation

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By William Wiley

Back in the early ’80s, we employment law practitioners were working to try to figure out just what the new laws regarding removing unacceptable performers were all about.

One of the unanswered questions from the Act was this: If an agency is confronted with a poor performer, must it use the new 432/PIP procedures to remove him or was it free to use the old 752 “adverse action” procedures that effectively pre-dated the Civil Service Reform Act of 1978 (CSRA)? OPM took a shot in the dark and concluded that 432 procedures must be used and that going forward agencies were precluded from using adverse action procedures for performance problems.

I was a relatively new GS-11 Employee Relations Specialist at the time, working for the Naval Hospital in San Diego. One case I was wrestling with was that of a pediatric nurse who was non-performing in ways that could get patients killed. For example, she was not consistently monitoring intravenous injection sites to make sure the needle stayed in the right place. You don’t have to have much of a medical background to appreciate that if the needle in a baby’s arm gets twisted out of the vein, the IV fluid will go into the baby’s arm tissues, causing swelling and perhaps resulting in loss of the arm or even the patient.

I remember calling the local OPM office for help. Back then (probably around 1981), I thought that OPM must have all the answers because the CSRA had put that agency in charge of advising us lowly HR officials at the various agencies around government. I explained the situation to them and they advised that I had to PIP the nurse and give her another 30 days or so to improve. I asked how many baby arms I should allow to be lost before we found her to be unacceptable during the PIP?

They then advised that I should assign a more qualified nurse to follow her around to make sure that when she made errors, there was someone there who could correct them before any babies died. I went and looked in my Spare Nurse Locker, and you know, there just weren’t any spare nurses in there.

Three things were burned into my brain at that moment:

  1. OPM does not know all the answers.
  2. Legal interpretations that defy common sense are usually wrong.
  3. Agencies absolutely must be able to use adverse action procedures to fire someone who’s past performance is so bad, immediate removal without a PIP is warranted.

Not long after that, the Federal Circuit Court of Appeals and the U.S. Supreme Court agreed with me. Although they did not mention me by name, I am certain that they were thinking of my pediatric nurse when they ruled that yes in-deed-dee, an agency certainly can use adverse action procedures to fire a bad performer. Lovshin v. Navy, 767 F.2d 826 (Fed. Cir. 1985), cert. denied, 475 US 1111 (1986). But there is one caveat: an agency cannot fire someone for poor performance using adverse action procedures if, under the employee’s performance plan, the performance would have been acceptable. In other words, an agency cannot say that 40 widgets per week is the minimum acceptable level of performance for 432 purposes, then order the employee to produce 45 widgets per week, and THEN remove the employee under 752 for “Failure to Perform Duties” or some similar charge label when only 42 widgets are produced.

Common sense to me.

Thirty years later, DVA fired a GS-7 Supervisory Program Specialist using adverse action procedures (no PIP) based on the following charges, all of which smell a lot like poor performance:

  • Failure to Properly Perform Duties
  • Failure to Perform Supervisory Duties
  • Failure to Perform Duties in a Timely Manner

The bottom line to these charges was that the employee was responsible for placing DVA patients waiting for a medical appointment into available appointment slots, a process known as “slotting.” The Deciding Official testified that slotting should be accomplished at a rate of 98 to 100% of the time. Unfortunately for DVA, the employee’s performance standard said that slotting was unacceptable if it fell below 85% efficiency. This mistake, plus some failures of proof caused the judge to set aside the removal and replace it with a demotion from a GS-7 Supervisory Program Specialist to a GS-5 Medical Support Technician.

I think I’m going to start using the term “legacy mistake” for agency procedural errors like this. It’s been a quarter of a century since the court laid down the Lovshin Rule. We’ve been teaching this legal point in FELTG’s fantastic MSPB Law Week program for about 15 years. It’s one thing to make a procedural error in an untested area of law. It’s a substantially different situation when we make a mistake that has been a mistake for 30+ years; a legacy mistake indeed.

So the agency made a mistake in this case. Well, so did the Board. Not necessarily a mistake in law, but a mistake in the reality of the federal workplace. When the Board found removal to be excessive, it replaced it with a demotion to a Medical Support Technician. Help me here; how does the Board know that the agency has work for a Medical Support Technician to do? Maybe all of its Medical Support Technician positions are filled and all the Medical Support Technician work is getting done. Does the Board expect the agency to run a RIF to vacate an existing Medical Support Technician position so that the appellant can be placed into it? Alternatively, does the Board think that the agency should just have the demoted employee sitting around waiting for more Medical Support Technician work to come in to be done? When the Board mitigates a removal to a demotion without evidence that there is lower-graded work to be done, it’s messing with the position management authority of the agency. Yes, if an adverse action penalty is too severe, the Board should be able to mitigate it – but not by interfering with the agency’s decisions as to how to run an efficient workplace. Wiley@FELTG.com