Clearing Up Some Confusion on Accommodating a Disabled Employee’s Commute

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By Deborah Hopkins

Reasonable Accommodation for disabilities is (still and always) a hot topic. In response to my article in September’s Newsletter (Is it Just Me, or is Reasonable Accommodation Becoming Trickier?) I received a follow-up question. So let’s continue the discussion.

Dear Ms Hopkins,

I read your guidance on reasonable accommodation with great interest (as always), and saved it for future reference.

However, I was surprised you did not address the possibility that the arrangement to work from office A had been made to facilitate a shorter commute. In my experience, a request to work from Office A instead of B, usually has a lot more to do with a preferred commute than a disability related to the duties of the position.

At my agency, we have had two recent “commute-driven” requests for reasonable accommodation, supported by quite flimsy medical documentation. In considering these cases, I had been working under the assumption that (irrespective of their medical documentation) we do not accommodate HOW someone gets to work, but just the duties of the position once they arrive….

Would you mind adding your comments on our responsibilities with regards to commuting?

Thanks.

Here’s my response (not legal advice – just my thoughts).

Hello FELTG Reader,

Thanks for the follow-up question.

Let’s tackle the documentation issue first. If an employee refuses to provide medical documentation related to a disability, then the employee has essentially waived his right to reasonable accommodation (RA) because he has failed to participate in the interactive process. See Akbar v. U.S. Postal Service, EEOC No. 0120081202 (EEOC OFO 2011).

Now on to the commute question. There’s some conflict when it comes to commuting and reasonable accommodation; the courts generally say that employers are not required to accommodate issues related to the employee’s commute but EEOC “precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency’s responsibility under the Rehabilitation Act.” Complainant v. HUD, EEOC No. 0720130029 (EEOC OFO 2015). In this HUD case, the EEOC said the agency denied the complainant RA when it refused to allow him to telework and/or work one day a week in an office nearer to his home than the office to which he was assigned. In this case the EEOC said that commuting is a major life activity, and that because of the complainant’s spinal condition the agency was required to accommodate his physical inability to commute the longer distance to the office.

Contrast that with the case Bill discussed in March (Accommodating the Disabled Commuter), where the complainant was requesting the agency provide him with a car and driver – an accommodation that directly opposed what Congress has said about commuting being a personal expense. Gerald L. v. DVA, EEOC No. 0120130776 (2015). In that case the EEOC reiterated that, and said the VA was not responsible to get the employee to and from work. In addition, the complainant had to be at the physical location to perform the essential functions of his job. This is fairly different than the HUD case above, where the complainant could perform the essential functions of his position in a different location, and never asked the agency to pay for a driver.

I agree that sometimes (too often, probably) the request for a different work location is tied more to convenience than actual disability, but it needs to at least be considered as a potential accommodation during the interactive process – after you get medical documentation.

So no, you do not need to accommodate the method of how the employee gets to work but you do need to consider whether they HAVE to be at the worksite to which they’re assigned. The conservative line of action here would be, after receiving appropriate medical documentation, to consider each employee’s requests and consider whether they can perform the essential functions of the position from home or perhaps at a closer office. If they can, that solution would be a potential reasonable accommodation – but if other accommodations are available, the agency is free to choose another option.  As long as you have a legitimate, nondiscriminatory reason (a business-based reason) that the employee needs to be at the main worksite, and can show that if they are not there it creates an undue hardship, you don’t have to grant the request for a different work location as an accommodation.

I hope this helps – as you know each RA request is a unique situation and must be looked at independently. Please let me know if you have any other questions.

Let’s keep the discussion going! What’s next? Hopkins@FELTG.com

OFO Misconstrues Standard for Grant of Summary Judgment

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By Deryn Sumner

Although most decisions issued by the EEOC’s Office of Federal Operations affirming grants of summary judgment by administrative judges are worthy of no more than a simple skim, the recent decision of Juanita K. v. Department of Homeland Security, EEOC No. 0120143236 (October 21, 2016) caught my eye because, based on the limited information provided in the decision, I think the Commission got it wrong.

The facts, as presented by the EEOC in the decision, are as follows.  Ms K. worked as a Voluntary Agency Specialist for FEMA.  (After some Internet sleuthing, it appears a Voluntary Agency Specialist is the interface between FEMA and volunteer organizations after national disasters occur).  After the Agency did not reappoint her to her position, she filed an EEO complaint alleging race, age, and sex discrimination, and retaliation.  After the Agency completed an investigation and the complainant requested a hearing, the administrative judge granted summary judgment in the Agency’s favor.  The administrative judge found that there were no material facts in genuine dispute and the Agency had established legitimate, non-discriminatory reasons for its actions.  As we know, summary judgment is only appropriate when there are no material facts in genuine dispute and the factfinder should construe the facts in the non-moving party’s favor when considering these facts.

Ms K. appealed the final action adopting the grant of summary judgment.  And on reading the Commission’s decision, it seems like Ms K. had evidence of pretext.  Here’s what we know, directly from the Commission’s decision:

Here, according to the Agency, Complainant was not reappointed because Complainant exhibited conduct which was not “conducive” to the workplace, including communicating with coworkers in a tone that was “rude and demanding” and “threatening.” This is a legitimate, nondiscriminatory reason for the Agency’s action.

In an effort to identify a genuine issue of material fact, Complainant points out that when she asked why she had not been reappointed, her supervisor initially stated that “staffing needs” made reductions in force necessary, never mentioning any problem with Complainant’s conduct. As Complainant characterizes it, her supervisor’s explanation was “inconsistent with the rationale she latter supplied to allegedly support the non-reappointment.” The Agency acknowledges that its initial explanation for its action was false. It explains that the Agency official who gave this explanation was not candid about the true reasons for not reappointing Complainant because she wished to avoid a confrontation with Complainant. Complainant argues that the inconsistency between the Agency’s first explanation and what it now claims is the true reason for its action creates a genuine issue of material fact precluding summary judgment.

So the Agency admits that it initially gave the complainant a false reason for not reappointing her to the position and later gave her a different reason.  Sounds like pretext to me, and a fact that should at least get Ms K. to a hearing.  But the Commission disagreed, stating:

Complainant’s position is not well taken. The fact that the Agency initially gave a false explanation does not necessarily provide support for a finding of discriminatory animus. As the Supreme Court observed in Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 148 (2000) “[i]f the circumstances show that the defendant gave the false explanation to conceal something other than discrimination, the inference of discrimination will be weak or nonexistent” (internal citations omitted). Here, the only evidence as to motivation shows that the Agency gave a false explanation in an effort to avoid a confrontation with Complainant, whom Complainant’s colleagues regarded as rude, demanding and threatening. The inference of discrimination is nonexistent. No genuine issue of material fact requiring a hearing is presented.

Now again, I don’t know anything about this case beyond what is contained in the five-page decision from the Commission.  And I’m not saying that Ms K. can ultimately establish that the Agency did not reappoint her because of discrimination.  But based on what is in this decision, I do think this was a case where a hearing would be appropriate so the judge could make credibility findings, rather than simply dismiss the case on summary judgment.  The Commission appears to take at face value that Ms K. was in fact “rude, demanding and threatening” without requiring an actual showing.  I think the Commission got this one wrong.  Sumner@FELTG.com

Tables of Penalties Can Be Deadly

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By William Wiley

Questions, we get questions. And here’s a good one from a longtime reader who is wrestling with an age-old problem: What to do with an unhelpful Table of Penalties.

Dear FELTG Rock Stars-

I’m another “loyal reader” and dealing with a charge issue.  My question is, from my table of penalties, there isn’t an official charge that includes the term “lack of candor.”  Do I just write up the analysis under the table’s charge “Misrepresentation, falsification, exaggeration, and concealment or withholding of material fact in connection with an official Government investigation, inquiry or other administrative proceeding”?

Thanks for your time.  I asked my boss if I could attend one of your FELTG training sessions, and he said no because it was too expensive.  In my opinion, my boss is short sighted. This employee is a really bad actor. Your class would have helped me tremendously.

And here’s our FELTG somewhat-snarky response:

Hi there, Loyal Reader-

I wonder what your boss thinks a single bad federal employee cost the government each year? We’d be happy to put on training for half that amount.

As for your question; no, no, no. Do NOT under any circumstances try to squeeze a Lack of Candor charge into a table of penalties that does not use that charge. Lack of candor is the brass ring in discipline charging these days, much-much better than charging falsification or any of that other stuff. Lack of Candor does not require you to prove an “intent to deceive” as you would have to prove with the charges in your table. Intent is difficult to prove and we avoid charges that require a proof of intent whenever we can.

The key is that you are not obligated to reference a charge in your table of penalties when you discipline an employee. See Farrell v. Interior, 314 F.3d 584 (Fed. Cir. 2002). The Table is a guide, not controlling policy. So you simply draft the proposal letter like this: “Charge 1 – Lack of Candor” without any reference to the agency’s Table of Penalties. Then, use the rest of the Douglas Factors to justify and defend whatever penalty you select. When you get to Douglas Factor 7, you say this, “The charge in this case is not identified in the agency’s Table of Penalties.” Mic drop … you’re done.

Hope this helps.  Wiley@FELTG.com

Appendix Q to MD-110 Lists Exactly What Agencies Need to Provide to Prove Compliance

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By Deryn Sumner

We’ve talked a few times in this space about the changes the Commission made to Management Directive 110 in August 2015.  One new addition we haven’t yet discussed is the addition of Appendix Q, a chart that provides examples of the types of evidence an agency should provide to establish proof of compliance with the different types of relief commonly ordered in Commission decisions.  As someone who represents both employees and agencies in federal sector EEO complaints, I know firsthand how compliance issues can linger long after the Commission has ordered the agency to implement remedies.  Both sides are more than ready to move on, but are stuck in a back-and-forth to ensure everything has been implemented and finalized.  Even though the Commission orders the relief to be implemented, there is often room for disagreement on the details.

Take for example, back pay.  A standard order from the Commission regarding back pay reads as follows:

The Agency shall calculate the amount of lost wages, including interest, for the time periods of February 13, 2006 to August 2006; and September 2007 to January 18, 2009. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision is issued. The Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. The Agency shall provide Complainant with its specific reasoning and calculations on how it reached this amount of back pay. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision”.

This specific language comes from Michelle G. v. Department of Navy, Appeal No. 0120160822 (October 20, 2016), although it reads like many back pay orders.  There are lots of potential areas of confusion in such an order: what if the employee worked in a position with overtime, shift differentials, or would have received a step increase during the time period in question?  Often the agency issues a check for a lump sum to the complainant without an explanation as to how the agency arrived at that amount. If he or she cannot figure it out or cannot get a clear explanation from the agency, the only option is to file a petition for enforcement.  And the most common remedy issued by the Commission in ruling on such petitions for enforcement is to order the agency to provide a detailed accounting of how it calculated the back pay.

Appendix Q attempts to reduce the number of compliance actions by providing a list of documents that an agency should provide for each type of compliance action.  For back pay, there are four types of documents listed:

  1. Computer printouts or payroll documents delineating gross back pay before mitigation and interest, and
  2. Copies of any cancelled checks issued; or a copy of a print screen showing an electronic funds transfer.
  3. Narrative statement by an appropriate agency official of total monies paid. An appropriate agency official must be one to know with reasonable certainty that the payment was made. (Last resort)
  4. Documentation must include total monies paid, to whom, and when.

To look at another example where compliance issues crop up, in order to establish compliance with an order to provide training, Appendix Q states that the agency should provide:

  1. Attendance roster at training session(s) or a narrative statement by an appropriate agency official confirming training hours, course titles and content, if necessary.
  2. Course description providing some indication that the training was appropriate for the discrimination found or commensurate with the order.

Agencies should utilize this Appendix to put everyone on the same page regarding how an agency is implementing a Commission order.  You can access Appendix Q here: https://www.eeoc.gov/federal/directives/md-110_appendix_q.cfm

Sumner@FELTG.com

Another Bold FELTG Recommendation

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By William Wiley

Dear President-to-Be:

I’ve been reviewing all the Board’s decisions for FY-2016 in preparation for our upcoming Updates webinar on Thursday, and I notice that the trend from past years continues. When looking at cases that agencies have lost, I lump the reasons for the losses into one of two groups:

  • Proof Losses – In these cases, the Board set aside a removal because it disagreed with the Deciding Official’s evaluation of the Douglas Factors or the agency’s presentation of a preponderance of the evidence to support its removal charges. I don’t see a lot of “fault” in these losses because an agency simply cannot predict what evidence the Board will find to be compelling. You do your best, but you just never know.
  • Practitioner Losses – In these cases, the Board set aside a removal because the agency representatives – lawyer or Human Resources specialists or both – failed to grasp a fundamental rule of MSPB practice. Examples of decisions in this group would be due process violations, failing to follow procedures, and improper charge framing.

As in previous years in which we have done this analysis, Practitioner Losses outpaced Proof Losses two-to-one. For every three cases agencies lost in FY 2016, one was because of a lack of enough proof, and two were because agency lawyers/HR specialists did not know Board law. And I mean BASIC Board law.

This situation is bad for America. In two-thirds of the FY 2016 cases that were lost, an employee was denied some right guaranteed by MSPB precedence. And the price for these rights-denials is often back pay with interest, attorney fees, and reinstatement. There is no joy in this situation for anyone: union, management, or private citizen.

From the pages of this newsletter, for nearly a decade, we have beseeched OPM to do something about this government failing. We have argued for OPM-approved training, testing, and certification of agency practitioners. We got nothing. We have pleaded with agency top leadership to mandate training for agency representatives. Not a peep. We’ve lobbied Congress to pass laws that would require that government employees who do this work know government employment law. Not even a thank-you for the sample textbooks we send them.

Well, maybe we’ve been barking up the wrong organizational tree.

I never claim to know much law beyond the four corners of federal employment law. But it is my understanding that to practice law in certain jurisdictions, an attorney has to be admitted to practice. For example, my fancy admission to the practice of law in California and before the US Supreme Court does me little good if I try to appear in some local parish courthouse in Louisiana. Did you see My Cousin Vinny? Well, that would be me, except I’d never get into the courtroom (and Marisa Tomei would never give me the time of day). Courts have their standards and they don’t want some doofus lawyer from out of town making a fool of himself before one of their judges.

So what if MSPB were to establish a standard of practice for lawyers and non-lawyers alike who represent agencies or clients in appeals to the Board? What if it required testing for anyone who wants to either appear on behalf of an agency or be entitled to attorney fees in a successful appeal of a removal? Maybe it could certify training groups to present programs that would be an alternative to testing, sort of the way that bar associations screen and approve organizations to provide continuing legal education.

There would need to be some exceptions, of course; perhaps some grandfathering in of practitioners who have represented in a certain minimum number of Board appeals. And of course, an employee can always represent herself. But a well-trained, recognized group of employment law practitioners, on both sides of the hearing room, would certainly make for a better government. Hey, Board! You’re in charge of protecting the merit systems. How about requiring that those who implement the merit systems know what in the devil they are doing.

Because these latest loss statistics say that some of them don’t. Wiley@FELTG.com

That’s It! I’ve HAD It! I’m DONE!

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By Deborah Hopkins

I am mad. Really mad. I am mad about the terrible advice a federal supervisor was given by her chief counsel’s office, about not holding an employee accountable for her performance out of fear of an EEO reprisal complaint. The kind of situation you’ll see below happens every day in agencies across the country, and to use a legal term, it sucks.

Here’s an email I recently got from a FELTG customer, and below that you’ll see my response.

Dear FELTG Super-Powers,

A colleague who was a Federal EEO person for many years suggested that I contact you.

I just returned to Federal service after a ten-year hiatus. I am the supervisor of a small staff in a large agency. I started a couple of months ago, and last week I learned I was part of an EEO complaint that was filed three days after I started work. Little did I understand when I took the job that this person had been a problem with the agency for at least five years.

There do not appear to have been any reprimands or other disciplinary actions for either her conduct or her performance. She has been given outstanding reviews for poor work because of the hope to have her leave the agency. In the few weeks I have been here it is clear that she should have been gone years ago.

I’m curious as to whether or not anyone has ever had an action against an agency for its consistent lack of taking action against a “rogue” employee such as the one I have. She was moved from one office to mine about three years ago because she was such a problem. I have now inherited this problem and am seen—after only a few weeks on the job—as simply a continuation of discriminatory supervision.

Now that her EEO complaint has been submitted she has become increasingly rude to me and others. I have been counseled by our chief counsel’s office to document her behavior and performance but not to take any disciplinary actions because that might be seen as retaliation.

Should I be concerned and talk to my own counsel regarding this matter?

Thanks.

Dear Supervisor,

Thanks for reaching out. I am frustrated for you, because I know this is a tough situation; you’re not alone in this, and we get calls and emails every week from supervisors like you with eerily similar scenarios.

To answer your questions, as far as we know nobody has ever taken official action in the courts against an agency for refusing to hold “rogue” employees accountable for performance or conduct, probably because so many agencies engage in this culture. But we do sometimes see proposed bills on Capitol Hill (recent example: the DVA), or articles in the newspaper, about how agencies need to do better. That’s as far as it’s gotten.

In my personal opinion (this is not legal advice), while your chief counsel’s office was wise to tell you to document what the employee is doing wrong, it has given you poor advice in telling you that you should not take action against this employee for fear it looks like reprisal. In fact, it’s not just poor advice, it is dead wrong advice and actually violates 5 USC § 4302(b)(6) which requires agencies to remove from their positions employees who do not meet minimum performance standards. That’s right, you don’t remove a non-performing employee and you’re violating the law.

Not taking action against an employee like this just continues to allow what has been happening for years, and trust me, employees who are given “Outstanding” ratings for doing poor work will never leave on their own; why would they be motivated to?

The biggest thing, should you decide to take action, is certainly to document the business-based reasons why you are taking the action (for example, if you are initiating a PIP or disciplinary action for misconduct). Based on her history the employee will likely file a reprisal complaint, and there’s nothing you can do to stop it – but the way you defend yourself is by having the documentation of your reasons.

Regarding personal risk, we’d need to know more about the situation to answer that question. If you’ve been given a direct order to not take action against this person and you decide to, then your job could be on the line, because insubordination (or perhaps failure to follow a direct order) is a serious offense.

If you’d like to discuss in more detail to see if perhaps you need an attorney, please feel free to let me know and we can set up a phone consultation, as FELTG does provide legal advice to consult with supervisors in situations like this.

I hope this helps. Good luck.

***

But wait, we’re not done yet. I got a response from this supervisor and she said that she was moving forward with action (yay!) in the form of a warning (NOOOOOOOOO!). Please, please, please – don’t do it. Here’s why:

If you give this problem employee a warning, she can file an EEO reprisal complaint. If you put her on a Performance Improvement Plan (which you can do with no proof, as long as you can merely articulate what critical element she isn’t performing well) she can file an EEO reprisal complaint.

If she fails to improve after the warning, you have no recourse except to warn her again or to put her on a PIP. If she fails the PIP, you can remove her from federal service.

So either way you go this employee can file an EEO reprisal complaint, but here’s the big difference:

If your agency wins the EEO hearing (and remember, the EEO process takes 2-3 years) and successfully defends against the reprisal complaint regarding the warning, your problem employee still works for you. If your agency wins the EEO hearing (in 2-3 years) and defends against reprisal over the PIP, the lady has been gone from your workplace for 3 years minus the length of the PIP (we suggest 30 days unless a union contract dictates otherwise).

To me, counselors, the choice is obvious. Hopkins@FELTG.com

Starting to Lose “The Faith”

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By William Wiley

Here at FELTG, we are civil service systems people. We take the position that there’s little wrong with the system that cannot be fixed by the system. In other words, we may occasionally disagree with a decision issued by an oversight agency, but for the most part, we see the system as working.

And then I run into two decisions in the same week that give me pause and make me wonder if the system really is working.

First, a decision from the Federal Circuit Court of Appeals, the reviewing court that oversees the final orders issued by MSPB. It is rare that a decision issued by this court causes concern as most of its decisions affirm the Board, some years at a rate of 95% or so. That rate is to be expected, as it is built into the law that the court is to be deferential to the Board on matters of fact and most matters of law.

Unfortunately, that deference did not happen in a recent decision. The facts of the case are not in dispute. The appellant, a housekeeper, had a substance abuse problem. He was absent from work for six months. Most of that time, he was participating in a rehab program in a correctional facility. However, toward the end of that period, because he got in a fight with another program participant, he was excused from the rehab program and remained in jail for the last 38 days of the six-month period.

His employer, DVA, removed him in large part because of the six-month absence. Unfortunately, the judge concluded that the period of absence while the appellant was participating in the rehab program was an approved absence. That left only the last 38 days of unapproved absence. Although the judge felt this reduction warranted mitigation of the removal to a 40-day suspension, the Board set aside the judge’s decision and upheld the removal. Purifoy v. DVA, 2015-3196 (Fed. Cir. 2016).

Then things got screwy on appeal to the Federal Circuit.

First, the court agreed with the judge that the agency could not charge the appellant with AWOL for the time the appellant was in the rehab program. It reasoned that when the employee notified “one of his supervisors” (point of interest: federal employees have a single immediate supervisor when it comes to requesting leave) that he would be absent due to rehab, the supervisor’s response that the appellant should “take care of [himself]” was an approval of leave for the period of rehab. It reached this conclusion even though the official he spoke with told him, “You also need to see your supervisor and fill out the proper paperwork.”

Apparently, the Federal Circuit doesn’t know that a) employees have a single supervisor for leave purposes, not several; b) employees request leave, they don’t just notify of an absence; and c) “paperwork” is often required to determine the type of leave being requested, the justification for the absence, and the expected duration of absence. It is not some bureaucratic follow-up of no importance to the determination about whether the employee’s leave request will be approved.

Secondly, the court noted that the MSPB judge had found that the entire six-month absence was not supported by “substantial” evidence. Every practitioner in this business knows that the proper evidentiary standard is a “preponderance” of the evidence. Apparently, the court does not.

Third, the court agreed with the judge that a significant mitigating factor was the fact that the sustained period of 38 days of AWOL was for less time than the originally charged six-month period. Apparently, it is engaged in the fallacy that if a big charge is reduced to a smaller charge, the big penalty of removal should be reduced to a smaller penalty. That makes no sense. Charge a criminal with killing ten people, and prove that he actually killed only one still warrants a murder conviction. The reasonableness of the penalty should be based on the sustained charges without reference to the charges that were brought, but not sustained.

Fourth, the court is concerned that the appellant was not put “on clear notice that his absence would result in severe discipline.” Well, what difference does that make? We are concerned generally about clarity of notice so that an employee knows exactly what misconduct to avoid. Here, the dude was in jail. He could not have avoided the AWOL even if he was given exceedingly clear repeated notice of possible severe discipline BECAUSE HE WAS INCARCERATED! If given clear notice, would he have not become incarcerated? Perhaps staged a prison break so he would not be AWOL? Ridiculous.

Fifth, the court faulted the Board for its failure to discuss the adequacy of a penalty less than removal for the sustained 38 days of AWOL. In other words, why not suspend the employee instead of firing him? Well, if we suspend him we lose his services for some period of time without any guarantee that he will not be AWOL again. And the harm he is causing the agency by his AWOL is that it loses the benefit of his services. Therefore, if it were to suspend the employee, it would be doubling up on the harm caused by his misconduct. It’s either remove or take no adverse action at all. Given the harm to the coworkers caused by their having to do this guy’s work while he was AWOL 38 days, removal is reasonable. And keep in mind, the agency’s penalty selection has to only be reasonable, not perfect.

Finally, the court goes out of its way to note that the appellant represented himself in his appeal and conducted an “extensive pro se cross-examination of the government’s witnesses.” It reasons that due to his “credibility and demeanor as both a witness and an advocate at hearing,” the Board should give “special deference” to its judge’s conclusion that the appellant has rehabilitation potential.

Look. We teach trial advocacy here at FELTG (next offered in DC October 23-27, 2017) and we know how challenging it can be to conduct a cross-examination. At the same time, we know that conducting a cross-examination is in no way related to the ability of someone to avoid going AWOL in the future or to otherwise perform housekeeping duties.

It is the deciding official’s responsibility to assess the Douglas Factor for rehabilitation potential. At the time the decision was made to fire this individual, he had not yet acted his own advocate, even if that were to be relevant. This point is huge: Should the agency’s penalty assessment when made at the time to remove receive deference when all of the charges are sustained as was the case here (Payne v. USPS, 72 MSPR 646 (1996))? Or, should the Board reconsider the penalty selection factors at the time of appeal based not only on the Douglas Factors before the deciding official, but also based on factors that occurred post-removal through the hearing?

I feel sorry for this appellant. Addiction is a terrible burden to bear and a tough diagnosis to beat. At the same time, I feel sorry for his coworkers who had to pick up the slack when this guy did not report to work for an extended period of time. I feel sorry for the vet patients who might not have received the degree of housekeeping services that were warranted because whoever was doing this appellant’s job was too busy to do all that really should have been done. And I feel sorry for the agency that is trying to hold this individual accountable for his unapproved absence, and who correctly considered the penalty factors when it made the decision to remove the employee.

Our civil service system is being attacked by those running for political office and by those already on Capitol Hill for making it too difficult to remove federal employees. Interventionist second-guessing decisions like this one from the Federal Circuit feed into that attack, and perhaps actually do indicate that it is the system that is the problem.

I have another case that makes this same point, but it will need to wait for a separate article. In fact, here at FELTG, if indeed the system is the problem, we even have an earth-shaking alternative approach to removing individuals from government for our new President to consider. That recommendation will have to wait for an even later article. Wiley@FELTG.com

Arbitration – “It’s Just Not Fair”

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By Barbara Haga

About a year ago I wrote about a credit card misuse case where the disciplinary action was taken to arbitration.  The arbitrator did not find that a GS-13 (with prior discipline about card use) taking ATM advances on the card when not on travel was personal use of the card and did not sustain the removal.

I thought that was a blatant example of an arbitrator applying a different standard than the MSPB on a particular kind of charge, but that was nothing compared to the performance case that I am writing about today.  This case is American Federation of Government Employees, Local 1923 and U.S. Department of Veterans Affairs (2016).  The decision came out June 10.  I hope the DVA filed an exception.

Background

The grievant was a Vocational Rehabilitation Counselor, GS-12.  She had been in her position for over ten years and had previously passed the Skills Certification Test for her position.  She worked in an “out-based” location away from where her supervisor was located.

There is a current announcement out for a job like this on USAJOBS.  It’s an opening at GS-101-9 target GS-12. The duties described include the following: 1) Provides and coordinates a wide range of rehabilitation counseling and case management services to veterans with disabilities and other eligible individuals, 2) Performs initial evaluations, makes eligibility determinations, does rehabilitation planning and problem solving, and conducts counseling, 3) Coordinates and implements rehabilitation services, completes case documentation, employment services, and administration and interpretation of vocational testing, 4) Makes recommendations and referrals to other sources, which may assist the veteran.  Clearly these are functions that veterans are in desperate need of at this time (the Bureau of Labor Statistics shows an unemployment rate for veterans this summer of 4.9%).

The qualifications requirement for the GS-9 is a master’s in rehabilitation counseling.  It appears from the current announcement that specialized experience can be gained in other Federal, state, and local rehabilitation work, but that is only substitutable for an internship requirement and doesn’t meet basic qualifications. The grievant arrived as a GS-9 employee in 2001 and was promoted to GS-12 in 2002 according to testimony of the deciding official.  The grievant admitted in her testimony that there were issues with her meeting the required standards in FY 13 and FY 12.

The PIP

The supervisor testified in the hearing that in September 2014 she found that the employee was failing three critical elements:  Quality of Work, Timeliness, and Successful Closure or Production. These elements are measured by national, number-driven standards. The standards included numbers like 88% on Fiscal Accuracy, 96% on Entitlement Determination, 83% on Accuracy of Evaluation, Planning, and Rehabilitation, etc.  I don’t know about my readers, but 83% and 88% seem generous to me – 12-17% improper payments would be okay????

The grievant provided testimony about whether the numbers were applied equitably – that sometimes there were delays in receiving course certification from a school a veteran was attending, and there were issues about computer down time.  The account of the management testimony on these points recounted in the decision is not what I would have hoped to see – that these are national averages that take into account certain problems in system availability, leave time, and problems in obtaining records, but that hundreds of counselors are able to meet these standards across the country every year.  Testimony about how they were developed, how long they had been used, etc., would have been helpful.

The PIP notice was prepared with union participation.  There was an oral meeting where failings were discussed and after the meeting, the employee and the union were asked for input.  There were two extensions to the PIP to provide time for training where the employee (a GS-12 full performance level employee) was taking training in the Vocational Rehabilitation Counselor Fundamentals. Another extension was granted at the employee’s request.  During the PIP there were bi-weekly meetings by telephone and in person.  The arbitrator wrote that “… copies of the meetings were documented and provided to her.”  I am also assuming that there were notes from each of the meetings that were given to the employee.

During the PIP the employee reached Fully Successful on two elements but remained at unacceptable on Quality of Work.  If I am following the decision correctly it seems that the PIP was issued in September 2014 and ended in March 2015, so the grievant had a six-month opportunity period.  Because she was at Unacceptable in one of her elements at the end of the PIP, she was removed from her position.

The Arbitrator’s Conclusion

The arbitrator overturned the removal.  When I read this decision this summer I nearly fainted.  Here is the highlight from Findings and Discussion: “The testimony is clear that the grievant seriously endeavored to achieve acceptable work performance and was unsuccessful in Critical Element 3 of her Performance Appraisal.  The determination of successful performance of Critical Element 3 is undisputed.  It is unclear whether the performance level was of her own making or due to a combination of attributing [sic?] factors.”

The arbitrator credited the employee’s account about delays in processing actions because of computer issues.  Management did not refute that to the arbitrator’s satisfaction.  But that was just one aspect of the unacceptable performance.   The decision goes on:

The failure of the grievant to meet standard in relation to the Quality of Work Critical Element presents similar concerns of fairness.  Particularly noteworthy is the grievant’s outcry for supervisory assistance in constructing an acceptable report.  Here again, the evidence is clear that supervision did exactly what was called for by Article 27, Section 10 in relation to identifying specific performance-related problems and deficiencies … TMS training, extending the period of the PIP and others.  Missing however is the response to her persistent request of the grievant for guidance and discussion on how to present an acceptable write-up to her supervisor.

The employee wanted samples.  Apparently, the employee asked the supervisor and other employees for samples of a properly completed report.  The supervisor told her she should be able to create that herself.  In other words, it appears she couldn’t create an acceptable report on her own and needed a go-by.

The arbitration decision addressed Douglas Factors in discussing that the employee was not responsible for delays caused by system problems. “The same kind of delay has contributed here to the grievant’s separation as though she was at fault.  An employee without fault has been penalized.  Thus, the extent or degree of any impact on Douglas Factor consideration is improper and cannot be found that the agency acted within the meaning of fairness an objectivity of Article 27.…  (It does appear that a manager testified about Douglas factors, but the arbitrator should know better.) [Editor’s Note: Douglas Factors have NO PLACE in a 432 unacceptable performance removal because the penalty cannot be mitigated. This is the second DVA case in a matter of weeks that we’ve run across in which Douglas Factors were improperly considered in an Unacceptable Performance removal under 5 CFR 432, see Walls v. DVA, DE-0752-13-0278-I-1 (September 7, 2016)(NP)(infra). Somebody needs to come to our classes, learn our business, and get the word out.]

The arbitrator ended with this:

“Despite the lack of any procedural errors in relation to the grievance [sic] performance appraisal and PIP, the grievance [sic] removal remains contractually deficient.  The Master Agreement recognizes and affords employees the right to a fair and equitable performance appraisal to the maximum extent possible.  Refusing reasonable requests of an employee assiduously endeavoring to maintain employment is hardly fair or equitable…  In the effort to be procedurally or mechanically correct in separating the grievant, management apparently lost sight of the underlying substantive purpose of a performance appraisal and the role of supervision in relation to PIP’s.”

American Federation of Government Employees, Local 1923 and U.S. Department of Veterans Affairs, 116 LRP 25915 (June 10, 2016). If I were keeping a list of names to strike…. Haga@FELTG.com

Seventh Circuit Grants Petition for En Banc Review in Sexual Orientation Case

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By Deryn Sumner

As we’ve discussed a few times in this space, in July 2015, the EEOC’s Office of Federal Operations made headlines when it declared in Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015) that claims of sexual orientation were simply claims of sex discrimination, stated claims under Title VII, and should be processed by federal agencies under existing procedures.  The EEOC made further headlines earlier this year when it filed two lawsuits against private sector employers alleging sex discrimination against gay employees and relying upon Baldwin to argue the cases had standing.  The plaintiff-side employment law community seized upon this, to varying degrees of success.

However, there was a recent victory in the form of the Court of Appeals for the Seventh Circuit’s grant of a request for a rehearing en banc in the case of Hively v. Ivy Tech Community College.  There, a part-time adjunct professor argued she was denied full-time employment and subsequent promotions because of her sexual orientation, and she filed a lawsuit under Title VII.  The District Court granted the College’s Motion to Dismiss, which the Court of Appeals affirmed in its July 28, 2016 decision.  See Hively, 830 F.3d 698 (7th Cir. 2016). That decision included extensive discussion of the surrounding law relating to sexual orientation claims, which up until recently had been focused on the idea of sexual stereotyping.  The Court noted that Congress had not included sexual orientation as a basis under Title VII, and recent attempts at amendment had been unsuccessful.

The decision concluded, “Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, (see Baldwin, 2015 WL 4397641 at **5, 10); many of the federal courts to consider the matter have stated that they do not condone it (see, e.g., Vickers, 453 F.3d at 764–65; Bibby, 260 F.3d at 265; Simonton, 232 F.3d at 35; Higgins, 194 F.3d at 259; Rene, 243 F.3d at 1209, (Hug, J., dissenting); Kay, 142 Fed.Appx. at 51; Silva, 2000 WL 525573, at *1); and this court undoubtedly does not condone it (see Ulane, 742 F.2d at 1084). But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED.” Id .at 718. 

Seems pretty final, huh.  However, the Court of Appeals just last week granted the appellant’s petition for an en banc rehearing.  Such requests are very rarely granted and this seems to signal that there’s more to come from the Seventh Circuit on this issue.  Oral argument has been scheduled for November 30, 2016 and we’ll keep you updated on this and other developments in Title VII case law.  Sumner@FELTG.com

Changing the Law Won’t Help

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By William Wiley

Dear Mr./Ms New President,

Sometimes I don’t know whether to scream or cry.

Last week was the 38th anniversary of the passage of the Civil Service Reform Act of 1978. In 1984, MPSB held that under the “new” Civil Service Reform Act, although it could mitigate unreasonable removals for misconduct taken under 5 USC Chapter 75, it had no similar authority to mitigate removals for unacceptable performance taken under 5 USC Chapter 43. Thus, one of the great gifts of the Reform Act came into existence: the ability to fire an unacceptable performer who failed a PIP (performance improvement plan) without having to defend not taking some lesser action, such as a demotion or reassignment. From the earliest days, we learned that we had to include a Douglas Factor analysis if we fired someone for misconduct, but not if we fired him for failing a PIP. Lisiecki v. Federal Home Loan Bank Board, 23 MSPR 633 (1984).

Some 30 years later, DVA fired a guy for failing a PIP, entitled the removal “Unsuccessful Performance,” and referenced 5 USC Chapter 43. However, it included in its appeal submissions a Douglas Factor analysis, which the Deciding Official referred to in justifying not taking a lesser action. MSPB reasoned that since the agency included a Douglas Factor analysis, it must REALLY have been taking a misconduct removal under 5 USC Chapter 75 regardless of its claims otherwise, required it to justify its penalty and applied the higher preponderance of evidence standard required in misconduct removals (rather than the lower “substantial evidence” burden of proof called for in performance actions).

In 1217, King John signed the second Magna Carta, thereby establishing for the first time in countries that base their laws on those of England (as we do here in the Colonies), that the government will treat its citizens fairly before taking away their property. In a subsequent Magna Carta in 1354, English law even came up with a name for this new requirement for fairness: due process. We brought due process into our country when our fore-parents drafted the Constitution. The Federal Circuit applied it in the world of federal employment law 30 years ago when it said that Deciding Officials violate due process if they rely on information unknown to the employee when deciding to fire the guy. Sullivan v. Navy, 720 F.2d 1266 (Fed. Cir. 1983).

Some 800 years later, in 2013, a DVA Deciding Official (DO) listened to recordings of inappropriate customer phone calls involving the proposed-removal-employee. The DO then relied on those calls when deciding to fire the employee for taking too long on those calls. This little due process violation is what we in the business call a “two-fer”. Not only did the DO violate Sullivan by relying on secret information, she also upheld a charge other than the one that was brought; e.g., Inappropriate Calls vs. Too-Long Calls. Walls v. DVA, DE-0752-13-0278-I-1 (September 7, 2016)(NP)

Our friends at DVA have been in the media a lot the past year or two, for several reasons:

  • A whistleblower revealed what has been described as a wide-spread practice of juggling the appointment books so that it appeared that DVA was providing prompt medical care to our vets when in fact a number of them were waiting months and years for an appointment.
  • Congress brought pressure on DVA top leadership to punish those managers responsible for gaming the appointment system and thereby harming our vets.
  • In response, political appointees at DVA stated that it was hard to discipline bad federal employees because of the onerous civil service protections. In support of this claim, it pointed to two or three instances in which DVA had indeed disciplined senior managers, only to have those actions set aside on appeal by the mean old Merit Systems Protection Board.
  • In response to that response, Congress changed the law to reduce the period of time an SES employee at DVA has to defend himself before he can be fired (from 30 days to 7), and foreclosed review of the judge’s decision by the three politically-appointed members of the Board at MSPB. As of this writing, similar legislation has been proposed (or maybe even enacted; I lose track with end-of-year continuing resolutions) to extend these reduced protections to most all DVA employees.

Oh, the misplaced effort. If Walls is an example of why agencies are losing cases before MSPB (and it is), the fault lies not in the law, the fault lies in the lack of knowledge of the laws that control the procedures we use in the federal workplace. Congress can reduce the darned notice period down to 15 minutes, and DVA is still going to lose cases if it hasn’t learned to apply legal principles that have been around since the Middle Ages (when we burned witches at the stake, all educated people communicated in Latin, and the top leadership positions for women in society were as either an abbess or a queen regnant).

There simply is no excuse for the procedural errors that were made in this case. FELTG phones are open every workday of the year. Our online registration is available 24/7. We work our trainers so hard that they beg for mercy (and an increased per diem allowance to cover their sizeable bar bills). If you are in a leadership position within your agency, and you’re tired of losing cases on appeal, go look in the mirror. The odds are awfully good that the problem is not in the civil service protections in law. If your lawyers and human resources professionals do not know how to handle these cases, the problem is in you.

With all due respect. Wiley@FELTG.com