Making EAP Referrals

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By Barbara Haga

This month we are exploring what a referral to an Employee Assistance Program (EAP) looks like.

Referral in Daily Practice

Years ago OPM had a film that I often used in supervisory training on EAP.  In fact, I used it so many times I can practically quote the script.  Unfortunately, it was quite dated.  The manager in the video was wearing a plaid sports coat right out of the ’70s and, at one point during the employee’s downward spiral, you saw a scene where the manager was in his office bemoaning his fate while emptying his pipe into an ash tray.  Obviously an update was needed and OPM released one, but I never thought that the updated one did as good a job of showing the actual referral.

I will never forget the employee in the original version; her name was June, and she seemed to be having some family problems that were coming with her to work.  It appeared that she was a Management or Program Analyst or something similar.  Her performance had deteriorated.  She was missing deadlines and messing up on details, and when she was asked about a work issue by a senior manager she chewed him out!  The immediate supervisor was Charlie. In his initial meetings with her, June was very good at deflecting his focus on her performance issues. For example, when he talked to her about errors in a report where the sums didn’t tally properly, she came back at him with “I found those errors and I have corrected them and I will have the report on your desk by the end of the day.”  She even patted him on the shoulder and said, “Everything’s going to be okay, Charlie.”  After a few exchanges like that, the supervisor was at his wits’ end, and June’s mistakes and omissions and poor behavior were beginning to reflect on him.

Like most training films, the manager tries it on his own without “guidance” and doesn’t fare very well, and then he gets help in planning out the referral and delivers the message the way he should have. The EAP counselor helps him prepare for the meeting with June.  She tells him to focus on the deadlines and mistakes and to stop focusing on what he thought was going on outside of work.  That’s excellent advice even by today’s standards.

Written Referral

The portion of the film when the manager advised June that she was being referred to EAP was done very, very well, and it became the model I followed when I advised managers how to do this.  In the film, the manager put together a letter describing June’s failing performance giving specific examples of the errors and omissions.  The film did not depict it as a PIP notice but was instead a warning that her performance was below standard.

I still recommend today that managers do written referrals documenting what the issues are.  This accomplishes several things.  First, it makes it real for the manager; he or she has to write down the details of what was wrong and why it was wrong.  Secondly, it makes it real for the employee.  Being chastised by someone about mistakes verbally isn’t pleasant, but seeing a formal letter that recounts these things is quite a different experience for most people.  Finally, it can help the EAP counselor.  Sometimes employees agree to go but then do the “I have no idea why I am here” routine with the counselor.  The letter helps the counselor ask about specifics.  In June’s case it might have been, “You had a conversation with Mr. Smith last Friday about a problem with a budget report.  How did that conversation start?  What did Mr. Smith ask you?”  By asking these kinds of questions the EAP counselor may get the employee to open up about what led up to the outburst that was reported to her supervisor. [Editor’s Note: As we teach in our UnCivil Servant seminar for managers, contemporaneous notes like these are an excellent defense should the employee challenge the supervisor in a grievance or complaint.]

The letter delivered in the film included a referral to the EAP counselor that Charlie had worked with.  When June came in to his office for the meeting, attitude in tow of course, he handed her a copy of the letter.   He reviewed the letter, focusing on the performance deficiencies.  He told her that he was referring her to the EAP.  June became agitated and said, “This is an adverse action letter.  I’ll file a grievance.”  The manager responded that it wasn’t an adverse action; it was simply a referral to the program.  He went on to say that things had to change and that her performance problems could no longer be tolerated.  When she pushed back he said something like, “June, you have excuses for everything, but something has to be done about your performance.”

June finally started to relent a bit and said, “Things at home have been tough for me lately, but it’s not something I can’t handle on my own.”  Charlie wraps up the meeting by repeating that her performance has to change.  He goes on to say, “The choice is up to you whether you go to EAP or not.  But, whether you go or not will be very important to me.”  At the end of the film we didn’t know whether she went, but Charlie can show that he took reasonable steps to put her on notice about her performance and offered her a chance to take advantage of the EAP.

Preparing the Manager in Today’s World

The world Charlie lived in is likely very different than what most agencies experience today.  An actual on-site skilled EAP counselor is a luxury many agencies don’t have.  Instead they rely on Federal Occupational Health (FOH) or some other long distance service to take care of their counseling services.  While that may be the most efficient answer, especially for agencies with widely dispersed populations, it doesn’t take care of the problem of preparing the manager.  Sometimes it falls on the HR practitioners to help the managers get ready for conversations with employees on tough topics like what was described above.

Putting referral information in the letter is a good start, but even the most brilliantly written referral letter, warning notice, or proposed performance or disciplinary action will not achieve its goals if it is delivered poorly and the meeting goes off track. That means not just e-mailing letters but going over the content with the manager and anticipating what kinds of things could come up and giving the manager an opportunity to think through the possibilities and how he or she will respond.

We generally don’t see managers being hired because they have experience with this sort of thing.  They have experience in other areas like budget, forestry, or rocket science.  We expect them to learn these kinds of techniques on the job.  I wish I could tell you that there is a good OPM film or course available to help you help them.  I looked through the HR University website but I didn’t see a course that seemed to cover this type of topic.  But, it is something worth investigating or developing materials for your own use.  It will be worth the investment. Haga@FELTG.com

Agency Effectively Accommodated Employee with Sensitivity to Smells

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By Deryn Sumner

Sometimes during EEOC Law Week and webinars, we’ll get questions about if and how agencies can accommodate employees with chemical sensitivities.  EEOC’s Office of Federal Operations recently issued an interesting decision in Martina S. v. Department of Defense, Appeal No. 0120140227 (August 19, 2016) addressing allegations that the Agency failed to effectively accommodate an employee who was sensitive to scents.  Martina, who as we know because of EEOC’s naming convention is not actually named Martina [Editor’s Note: Or, is she? Hmmm.], worked as a Security Specialist in an office in Washington, D.C. that underwent construction.  She complained that the fumes and dust made her sick and requested to be able to work in another office space, but the Agency conducted tests and determined the space was safe and denied her request because of the sensitive nature of her job.  The Agency did ask the co-workers not to spray anything in the office. Also of note, Martina did not, at the time, respond to requests for medical documentation.

However, more than a year later, Martina did provide a medical note, stating she was “intolerant of stray perfumes or scents” and submitted her own list of items she was allergic to, which included cleaning supplies, markers, and Lysol. Her supervisor stated that if Martina provided medical documentation to support this list, she would send a message to staff members.  But again, Martina did not provide medical documentation.  Fast forward two years when a co-worker sprayed Lysol on her telephone, causing Martina to leave the building.  After that incident, Martina submitted a medical note saying she was “intolerant to strong fumes and odors” and “should not be exposed to aerosols.”

After another incident involving Lysol which caused Martina to go to the hospital, she submitted a request to be moved to another office location and included a letter from her doctor stating that she suffered from “reactive airway disease.”  The Agency, in coordination with the occupational health office, determined that Martina was not disabled as she only experienced symptoms in one location, and could work there if there were no strong perfumes or Lysol. Based on that, the Agency denied the request for relocation to another office space.

Martina filed an EEO complaint alleging harassment and failure to accommodate, and after an investigation, an administrative judge granted summary judgment in the Agency’s favor.  On appeal, the Office of Federal Operations agreed.  The Commission found that the initial medical documentation Martina submitted did not show that she was an individual with a disability because it did not state that she had an impairment or how she was substantially limited in a major life activity.  However, assuming for the sake of argument that Martina did provide sufficient medical documentation, the Commission found that the Agency did accommodate her by instructing employees not to use strong smelling products and Lysol, which included posting signs about the prohibition of their use.  The Commission, noting that Martina was only entitled to an effective accommodation and not the one of her choice, assuming she was entitled to an accommodation at all, found that the Agency was not liable for the claims raised in Martina’s formal complaint.

The lessons to be learned from this case include making sure that employees with similar allergies or sensitivities provide effective documentation and considering alternate accommodations that may be effective to accommodate such medical conditions. Sumner@FELTG.com

Time for FELTG to Start Advising our New President

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By William Wiley

It’s that time again. We’re about to get a new face in the White House and a fresh breed of political overlords in each agency. Even the folks on Capitol Hill appear to be ready for a shake up. Hopefully, the new folks will take a few minutes to listen to us old guys before they start making seismic changes to our civil service.

As we here at FELTG claim rights to the heritage of some of the oldest folks in this business, we also claim the right – on your behalf – to tell the new leadership what’s working and what’s not working in this game of running the government. So expect to see several upcoming articles, intended for our new President, based on decades of (good and bad) experience, designed to make the government more effective and efficient while simultaneously recognizing long-standing employee rights and responsibilities.

To kick off our series, let’s start with one of our favorite topics: accountability. If you’ve participated in our supervisory program UnCivil Servant, you know that the subtitle for our textbook is Holding Government Employees Accountable for Performance and Conduct. We are all about accountability here at FELTG, from the bottom to the top.

But today, our focus is not on employee accountability, it’s on agency accountability. We’re looking at a question of accountability and responsibility that bedevils us all and drags down our civil service and our government:

What agency is responsible for the abysmal success rate government managers have when they fire employees?

Yes, abysmal. As we’ve written about in this newsletter before, MSPB should be upholding 100% of removals that managers implement. That’s because MSPB sets aside removals only when it finds that the agency made a mistake, and agencies have no business making mistakes (and thereby violating an employee’s rights) in any cases at all, save for the occasional unexpected change in law that occurs subsequent to the removal.

So exactly what is this less-than-100% rate that deserves the adjective “abysmal?” Well, according to the latest statistics and public pronouncements by MSPB’s current leadership, the Board finds fault and sets aside adverse action removals in 25% of appeals. That’s right. After spending the past 40 years learning the foundational civil service removal law, agencies still screw up one out of four cases.

That’s just terrible. Think of all the taxpayer dollars wasted on back pay and attorney fees. Add to that the agency resources that are wasted when an appealed action is set aside. Think of all the hundreds of lives disrupted each year by an unjust removal. If one out of four appealed removals is unwarranted, extrapolate that failure rate to all those employees who were fired, and who didn’t have the money, stamina, or wherewithal to make it through the appellate process so that MSPB could reverse their firing. And think of all the employees who should have been fired who were not because management looked at a success rates of only 75% and decided that it wasn’t worth the risk to fire them.

Now that I think about it, “abysmal” might not be strong enough.

If you ran a company, what would you do if you realized you had a 25% failure rate? 25% of your cars fell apart? 25% of your airplanes didn’t land? 25% of your pizzas made people sick? Would you sit back and say to yourself, “Well, at least 75% of my clients didn’t die.” No, you’d put somebody in charge of fixing the situation and then hold them accountable for a fix.

So who is responsible for fixing the government’s horrible success rate before MSPB? Nobody, as far as we can tell. Oh, here at FELTG we do what we can, but we don’t really have the responsibility to do it. We do it because it’s the right thing to do, and because our wonderful clients keep inviting us to do it. But really, shouldn’t there be a government entity held responsible for doing whatever it takes to make sure agencies fire people properly, to improve that success rate from 75% to something close to 99%?

And that, Madam/Mister President-to-Be is our first major recommendation. Put somebody in charge of improving the government’s success rate in removal actions. Don’t leave it up to individual agencies to know what to do. As we’ve discussed previously, too many employment law practitioners are still making basic mistakes, even though we’ve known that they were mistakes for almost a quarter of a century (don’t make me talk about “conjunctive charges” again).

And whomever/whatever you put in charge, hold them accountable. If the government’s success rate goes up, then that’s good. But if it stays the same or (god forbid) gets worse, sack them and get someone else. Accountability is too important not to hold someone accountable for it. Wiley@FELTG.com

You Don’t Know Discipline

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By William Wiley

Whether you are a supervisor, attorney, human resources specialist, or union representative, many readers of this newsletter are in the business of employee accountability. Discipline is a major tool in the world of employee accountability. Yet, as much as we deal with it, and as important as it is in many ways, discipline is not an easy thing to define. And its definitions can be exceedingly important, varying from one forum to another. In this article, we here at FELTG try to sort them out for you.

MSPB: What is and is not discipline is tremendously important in the world of MSPB appeals. As every practitioner knows, when an agency is defending a removal penalty as being reasonable, the agency relies on the fabulous and famous Douglas Factors. Otherwise known as “penalty defense” factors, agencies who remove employees have had to analyze these 12 factors since 1981 to explain to the Board why the employee deserved to be fired rather than receive some lesser penalty.

Factor 3 in that list of mandatory factor consideration is the employee’s prior discipline history. The theory is that an employee who the supervisor has previously disciplined warrants a more severe penalty for a subsequent infraction than a similar employee who has not been given the benefit of discipline and a chance to learn from her mistakes. This theory of discipline is well established and often goes by the name “progressive discipline.”

To apply the theory of progressive discipline in support of a removal, it is critical to know what counts as discipline and what does not. In other words, we need a definition of a disciplinary act to distinguish “true” discipline from some lesser act on the part of the supervisor. Unfortunately, Congress did not see fit to define discipline in law. Fortunately, the Federal Circuit Court of Appeals early-on stepped into the breach and defined discipline for the purpose applying progressive discipline to defend a removal as having three mandatory characteristics:

  1. It must be in writing,
  2. It must be grievable, and
  3. It must be stored in an official employee file.

Bolling v. Air Force, 9 MSPR 335 (1981)

Universally throughout government, there are three documents that meet these criteria in support of a removal when applying the Douglas Factors. The Terrific Three are:

  1. Reprimand
  2. Suspension
  3. Demotion/Removal

By OPM regulations, these three documents are written, challengeable, and stored in an employee’s Official Personnel Folder, although somewhat briefly in the case of a reprimand. If these were the only supervisory actions used to correct behavior, the world would be a simpler and better place. In fact, that’s exactly what we teach in the FELTG supervisory training classes we present. Stay with these three, and your life will be simpler and your actions more defensible.

Unfortunately, some agency policy makers and discipline advisors have chosen to add other actions to the list of options that a supervisor has when trying to obtain employee compliance with a rule: warnings, counselings, admonishments, letters of expectation, letters of requirement, etc. I ran into a DoD agency many years ago that even had something officially called an “Oral Admonishment Reduced to Writing.” Sometimes one or more of these is listed in the agency’s Table of Penalties, sometimes in a collective bargaining agreement, and sometimes they have been used historically; therefore, they are still used today.

The overriding problem when we use these extra options is that there is no universal definition for them like there is for the Terrific Three. For example, when you give an Admonishment, can you use it for the purpose of applying the theory of Douglas Factor 3, progressive discipline? Well, we don’t know until we apply the Bolling criteria. In my experience, sometimes an Admonishment meets the criteria, but sometimes not. These extra options create a potential problem on appeal because, as every seasoned practitioner knows, the more opportunity you give yourself to make a mistake, the more likely it is that you will indeed make a mistake. There is a cost to using extra options that are not universally recognized when a case is challenged to a judge or to the Board. Every adverse thing you do to an employee can be challenged through the EEO complaint system. Why would you do more than necessary since the more you do, the more there is to become the subject of a complaint?

Costs aren’t necessarily to be avoided, however. One should always assess the potential benefits against the projected additional costs. So what’s the legal benefit of using any of these non-defined extra options?

There are none.

Oh, every now and then, someone in one of our classes will say that Letters of Warning and Letters of Counseling put the employee on notice of the rule, one of the Five Elements of Discipline. Yeah, well so does an email that states the rule, “Bill, be at your desk by 8:00 AM every morning.” And an email like this is not an “adverse action” that might have to be defended in a grievance or complaint, nor will it be confused with “prior discipline.” So the very best practice, by far, is to stick to the Terrific Three, avoid any creative other options, and your life will be much simpler and just as powerful. They are discipline.

OSC:  The US Office of Special Counsel is responsible for protecting whistleblowers against reprisal “personnel actions” taken by agency managers. We know that any of the Terrific Three counts as a personnel action for the purpose of this protection. But what about Admonishments? Letters of Counseling? If you give me a Letter of Warning, is it possible for OSC to conclude that you have reprised against me for whistleblowing? If OSC fails to act, might I convince an MSPB judge or the Board itself through an Individual Right of Action appeal that you are indeed a Whistleblower Repriser? And of course any failure to find reprisal by the Board can be challenged by me to any numbered federal circuit court of appeal in which I can establish jurisdiction, ultimately coming to rest on the desk of the Clerk at the US Supreme Court, if I have the patience and can figure out the forms. Yes, it is highly important to know what constitutes a disciplinary “personnel action” for the purpose of an OSC investigation and re-primal-claim resolution.

Unfortunately, the courts have come up with a different way of figuring this one out. Instead of relying on the Bolling criteria as an indicator of what counts as a disciplinary personnel action and what does not, the Federal Circuit has decided that it will look to the specific words of the contested document, whether it is called a Warning or Admonishment or something else. If the document a) accuses the employee of prior misconduct and b) threatens a suspension or removal in the future if the misconduct is repeated, then it is a “personnel action” for the purpose of allowing the employee to pursue a whistleblower reprisal claim. Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015).

Here are two Letters of Admonishment:

A. “Bill, I admonish you to turn out the lights when you leave for the day.”

B. “Bill, I admonish you to turn out the lights when you leave for the day. If you don’t, next time I will reprimand you.”

Option B can take the employee through an OSC investigation, discovery and a hearing at MSPB, an appeal to the three Board members, to a federal circuit court, and finally to the Supremes. Option A takes him nowhere. These things, whatever you call them, have no value. Why in the world would an agency want to open up the possibility of this sort of confusion and extended litigation for something that is of no benefit and can be easily avoided? To paraphrase First Lady Nancy Reagan, “Just say no to extra options.” Focus on the Terrific Three. Learn to do what counts and what works.

EEOC:  The Commission uses yet another standard when assessing whether an agency has done something to an employee in reprisal for her EEO activity, or her membership in a protected category; race, sex, age, etc. Whereas MSPB is concerned with Bolling disciplinary actions, and OSC is concerned with the broader concept of “personnel actions,” EEOC stands up to protect federal employees from the super-broad “adverse employment actions.” See Medina v. Henderson, No. 98-5471, 1999 U.S. App. LEXIS 11042, 1999 WL 325497 (D.C. Cir. Apr. 30, 1999). Without doubt, EEOC considers reprimands, suspensions, and demotions to be adverse employment actions. But what about these Extra Options? If you give me a Letter of Counseling, can I file an EEO complaint against you? (Yes you can; e.g., Zenobia K., Complainant, v. DLA, EEOC No. 0120142873, July 15, 2016)

There is a surprising exception to the EEOC definition of adverse employment actions: PIP initiation letters. Many years ago, EEOC decided that since the initiation of a PIP is not itself adverse, but rather a preliminary act to a possible adverse employment action down the road, the initiation of a a performance Improvement Plan cannot be the subject of a discrimination complaint. A tip of our collective hats to the Commission for that good-sense ruling: e.g., Lopez v. Agriculture, EEOC No. 01A04897 (2000).

Bottom Line:  The minimum actions necessary to hold a federal civil servant accountable are significant in number and degree. Adding Extra Options to a collective bargaining agreement, agency policy, or individual counselor’s practice does the agency no good and carries with it the possibility wasted resources and appeal loss. Leonardo de Vinci once said, “Simplicity is the ultimate sophistication.” He would have fit in well here at FELTG.

wiley@feltg.com

 

What Should be Done About This Rating?

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By William Wiley

Many of us use TripAdvisor or Yelp when we’re trying to decide where to have dinner. If we find ratings of four- and five-stars, we feel comfortable that the place will have decent-to-better food. However, if you’re like me, you avoid like the plague (or botulism) any place that’s rated primarily one- or two-stars. An eating establishment that is rated only one- or two-stars by its customers must have something seriously wrong with it.

So what would you say about a federal agency that asks its customers to rate it on Courtesy and Results on a five-star scale with:

** = Dissatisfied

*    = Very Dissatisfied

And 87% of the ratings are only one- or two-stars? What would you say if you found out that nearly half of the ratings were only one-star, that just under 50% of the citizens who had gone to that agency for help during FY-2015 were Very Dissatisfied with the Courtesy and Results they received? Would you not want to find out what was causing the low ratings, so you could understand better if something could be done to improve the situation?

Of course you would. You wouldn’t be staying in business very long as a private company with abysmally low ratings like that. We certainly should not expect less from our government than we do from a private business, at least on things like courtesy.

Historical Note: Did you know that President Jimmy Carter thought that courtesy towards the public on behalf of a federal agency was so important that he even had “discourtesy” added to the Civil Service Reform Act of 1978 as a specific type of misconduct warranting a suspension? Did you know that discourtesy is the ONLY act of misconduct specified in the CSRA that warrants discipline? Check it out: 5 USC 7503(a).

Well, the agency that has recently disclosed in its annual report to Congress that it was rated one-sies and two-sies by its Very Dissatisfied clientele last year is … drum roll, please … the US Office of Special Counsel. Yes, if you manage to dig through the first pages of its fascinating 52-page annual report (https://osc.gov/Resources/FINAL-FY-2015-Annual-Report.pdf) , way back at the bottom on page 44, you will find the results of the OSC client survey that contains these troublesome ratings.

It seems obvious that ratings like this are the result of either of two things:

  1. Discourteous behavior on the part of OSC employees, or
  2. An OSC clientele that is particularly sensitive to courtesy.

When dealing with OSC, each of us has limited personal experiences. About 350 clients participated in the 2015 survey. Each of those people had his own unique interactions with OSC staff. On a personal level, I’ve been dealing with OSC employees for over 35 years. Here at FELTG, one of the legal services we provide is representing agencies and individual managers in dealing with OSC. Without exception, although many times I do not agree with them, the representatives of OSC have been exceptionally courteous with me. Perhaps it’s my own internal charm that draws courtesy out of people (ha!) or perhaps I’ve just been lucky. Whatever it is, I cannot say I have ever experienced discourteous conduct on the part of OSC personnel.

Of course, perhaps others have. If we do a study and it turns out that OSC personnel are routinely being discourteous, then the solution to the ratings is to train those personnel in being courteous, and then hold them accountable for practicing what they have learned. There are a number of companies (e.g., Nordstrom) that teach customer courtesy. OSC could contract for training, and then impose discipline as specified in the CSRA for those who do not obey agency rules about courtesy. Alternatively, OSC management could implement Performance Improvement Plans for employees who fail a Courtesy critical element.

What’ that you say? OSC personnel don’t have any critical elements related to courtesy? Maybe that’s the start of the solution right there. [Special notice to OSC management: If you are unfamiliar with these two approaches to employee accountability, come to our MSPB Law Week seminar next scheduled for September 12-16, in Washington DC. Free coffee!]

OK, we do our little study and we find out that, for the most part, OSC personnel are just about as courteous as we would expect government employees to be, maybe even a bit better than some others. If that’s the case, then perhaps there’s something about the courtesy sensitivity of OSC clients. The people who go to OSC for help believe that they have been mistreated, that management officials within their employing agencies have committed prohibited personnel practices against them. In other words, they believe that they are right and others are wrong. Some might call them self-righteous; others might simply call them right. Whatever the case, if there’s a personality characteristic that makes OSC clientele more likely to feel that they’ve been treated in a discourteous manner, shouldn’t we acknowledge that in some way? And once acknowledged, maybe there are things we can do to reduce the feelings of discourtesy in this particularly sensitive group, sort of how we give anger management training to people who cannot control their anger. Sometimes folks need help.

When assessing any survey results, we have to keep in mind that there could be a problem with the data-gathering methodology. However, assuming that there’s no methodology problem in the survey that produced the results on page 44, and assuming that President Carter was right that courtesy in government is important, then it seems obvious to us here at FELTG that somebody should look into the cause for such low ratings. There are things that can be done to improve the situation whether the cause is discourteous OSC employees or courtesy-sensitive OSC clientele. Of course, we don’t get to run anything here at FELTG except ourselves, but SOMEBODY ought to be checking this out. Wiley@FELTG.com

A FELTG Offer You Should Consider Seriously

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By William Wiley

Our FELTG team of instructors presents seminars throughout government, interfacing with many agencies each year. One of the things we’ve come to notice is that agencies often tell us that they add layers of extra steps to labor/employee relations processes beyond what is required by law. Although the statutory minimum process required to fire a bad civil servant for misconduct involves a single supervisor and 30 days of pay, a large number of agencies greatly exceed these minimums; e.g.:

  • According to MSPB reports, 80% of agencies take more than 45 days to remove a bad employee.
  • Most agencies use at least two levels of supervision to terminate a misconduct-ing employee.
  • Some agencies use a multi-member board to propose or decide a tentative removal, plus all the layers of unofficial review that go on before the matter ever gets to the Board.
  • Lawyers are brought into the procedures at various levels and given the authority to block the tentative removal (denial authority is rarely official, but exercised anyway).
  • According to MSPB surveys, 97% (ninety-seven frigging percent!) of front-line supervisors mistakenly believe that it takes more proof to fire someone than the law has required for nearly 40 years.

Our civil service is routinely (and justifiably) criticized for our inability to promptly deal with misbehaving employees, both by Congress, and also by the hard-working employees who see that bad employees do not get fired and receive the same salary and benefits as they do. Yet rather than deal with these nasty realities, agencies continue to come up with convoluted, unnecessary, and inefficient ways to hold bad employees accountable for bad conduct.

Fortunately, we here at FELTG have come up with a challenge for you readers that just might fix this dismal situation. To see if you’re eligible to accept our challenge, consider the FELTG philosophy regarding civil service accountability:

  1. Managers – not lawyers nor human resources specialists – should make decisions regarding employee discipline. Most all formal agency policies, instituted by agency heads, say that line managers make discipline decisions based on the advice and counsel of HR and legal. However, the reality is far from this, in our experience. Routinely in our supervisor training classes, participants say things like, “That’s great, but HR won’t let us do that.” Or, “My draft proposal has been sitting in legal for six months waiting on them to approve the removal.” Well, that’s just terrible. It is a rare HR specialist or reviewing attorney who has been trained in how to manage an organization. We may know the law, but we have little actual real experience being held accountable for the functioning of an organization. Although we can advise, it is the front-line manager who most fully appreciates the harm caused by the non-performing employee and who has to suffer the loss of productivity and unnecessary salary expenditures that result from delayed removal actions. Therefore, the line manager should be making those decisions, not us.
  1. Supervisors should be trained, then held accountable for how well they discipline. Instead, what we’ve found is that upper management and staff advisors often think that because of their respective exalted positions, they are in the better position to make discipline decisions, that the front line supervisor should not be allowed to act because, darn it, they just aren’t as smart as we are.

You aren’t going to like this, but here’s the deal. If you have front line supervisors who do not know how to administer discipline, then it is YOUR FREAKING FAULT. You either hired the wrong person, failed to train that person, or declined to hold that person accountable when he did not properly discipline his workforce. We all learned this in the 80s when we were studying Japanese total quality management styles. Instead of checking production at each step of a process, you train individuals to do their job properly in the first place, then hold them accountable at the end of the process for quality and efficiency. By doing away with all those intermediate check points, things can get done much faster.

  1. The statutory legal minimums are fair to the employee. Yet we see agencies provide much more than is required when it comes to holding employees accountable, for reasons we cannot fathom. For example,
  • Before initiating a Performance Improvement Plan to assist a poor performer to improve, some agency policies mandate that the supervisor should place the employee into a pre-PIP mini-PIP, and then formally PIP her only after she fails the pre-period. Why? If the employee has already demonstrated unacceptable performance, why add the additional time to the improvement process? You sure don’t see the private sector doing something like this. Agencies were created to provide government services, not government employment.
  • If an employee presents a medical certificate from his physician that concludes he cannot do his job, if the employee cannot be accommodated, then the direct approach is to remove the employee based on a charge of Medical Inability to Perform. The employee’s medical certificate is preponderant proof that the removal is warranted. Yet, at least one large agency we know will instead delay the process and incur additional costs by sending the employee for a Fitness for Duty medical examination. Again, why? The employee’s doctor says he can’t do the job. You’re not helping the employee when he applies for disability retirement by sending him to a FFD (the fact of the medical inability removal does that by itself). Using the employee’s own self-generated medical documentation is just about the best medical evidence you can have on appeal.
  • Once a removal is proposed, the employee cannot be removed for 30 days. During this time, she has the right to defend herself by responding to the proposal. The minimum response period is seven days, but there’s no real problem if the agency extends the response period to 10 or 20 days, to accommodate the needs of the employee. Yet, way too many agencies cavalierly extend the response period beyond 30 days, many times to 60 days or more, at the request of the employee or his representative. “I’m a very busy and important employee-representing lawyer. I don’t have time in my tight schedule to prepare a response in less than 90 days.” Or, “As the employee’s union representative, we exercise our right to file for information related to the removal, and demand that you extend the proposal period to allow us to receive that information and analyze it.”

Well, isn’t that just absolutely unfortunate. In other words, these representatives are asking me, the agency representative, to donate good government money to pay the employee’s salary because the employee’s lawyer is too busy or the employee’s union wants to exercise a right to information. In my world, as agency counsel, I’m busy, as well. And by law we’ve already given the employee access to all the material relied upon in making the decision to propose removal. You’re requesting an extension beyond 30 days? Denied. If you don’t like that, take it up with MSPB (I say this knowing that MSPB has NEVER reversed a removal based on an agency’s refusal to extend the notice period).

On the rare occasion that I am feeling magnanimous or I’m working with a deciding official who took his nice-guy pills that day, I’d be willing to extend the notice period beyond 30 days, but only if the employee is willing to request LWOP for that extra time. You need more time than Congress said is necessary? You pay for it.

The Cure

Now that we’re clear regarding the problem, here’s our FELTG challenge to you.

Try something different.

And here’s the Different Something to try:

  • Establish a group of employees. Select a part of your organization that is relatively representative of the type of work you do. Best to start out with a non-union group to simplify implementation. The bigger, the better.
  • Divide the group in half so that you have a test group and a control group. Make the division as random as possible while maintaining the goal of having two similar groups.

For the control group, retain your current procedures. For the test group, establish new discipline policies as follows:

  1. Recognize only three types of discipline: reprimands, suspensions, and removals.
  2. Delegate discipline authority to first level supervisors. The first line supervisor would issue reprimands, and propose and decide suspensions and removals independently.
  3. HR specialists and legal counsel could be requested to advise at the request of the supervisor, but would have no authority to prevent or delay the supervisor from taking disciplinary action.
  4. The notice period for suspensions of up to 14 days would be 24 hours. For proposed removals, the notice period would be 30 days with no paid extensions granted. Suspensions beyond 14 days would not be allowed. Demotions would not be proposed, but could be implemented as settlement of a removal if the employee and supervisor agreed.

As for unacceptable performance procedures, the test group would implement the following:

  1. Although no proof is required to initiate a PIP, the immediate supervisor will make a list of all mistakes the unacceptable performer has made prior to being PIPed, related to each failed critical element.
  2. PIPs will be for 30 days.
  3. The supervisor will meet weekly with the PIPee to provide feedback on the week’s work.
  4. HR or legal will provide weekly feedback to the supervisor as to the quality of the PIP counseling sessions.
  5. Should the PIPee fail irretrievably prior to the end of the 30 days, the PIP will be terminated and the supervisor will propose the PIPee’s removal immediately. The decision regarding the proposed removal will be made by the second-level supervisor.

For both misconduct and unacceptable performance:

  1. The supervisor will place each employee for whom removal is proposed on administrative leave and deny the PIPee access to the workplace and to the agency’s intranet.
  2. Decisions regarding proposed removals normally will be made no later than the 31st day after the proposal.
  3. HR and/or legal would receive copies of all proposals and have the responsibility to notify the supervisor and higher-level management of any problems that are identified. Notice periods normally would not be extended to provide time for HR or legal notification.
  4. Higher-level management would provide monthly feedback to every supervisor as to that supervisor’s effectiveness regarding employee accountability through discipline and performance improvement.

“Oh, my goodness. Those folks at FELTG must have been smoking some funny tobacco if they think this makes any sense.” Well, don’t give us a hard time. What you see here is EXACTLY what was envisioned by the authors of the Civil Service Reform Act of 1978. The only tweak we’ve added is the mistake list for unacceptable performance. We had to do that because of the way the discrimination and whistleblower laws have developed over the years. Otherwise, you’re looking at a plan and approach envisioned by Jimmy Carter way back when the Bee Gees’s “Stayin’ Alive” was the number one song for the year.

Not a bad anthem for the project, now that I think about it.

Before you implement the project, engage an outside group to develop program indicators and to evaluate the success or failure of the Different Something as time progresses; maybe MSPB or OPM would be willing to provide an evaluation as they have an interest in an efficient government. Oversight by a neutral party would add legitimacy and reduce bias compared to internal evaluation.

FELTG’s No-Catch All-In Offer

For the first agency who is willing to give this approach a try, FELTG will donate at no cost to the agency initial training and on-going support for all of your supervisors who will be participating in the test group. Yes, we’ll have our expert trainers on-site and on-line to get your supervisors up to speed so that they can handle the responsibility of disciplining fairly and effectively. We believe that education is key to using effective government accountability procedures, and we’re willing to put our money where our mouth is. If your supervisors succeed, we succeed. If they screw up, we’ve wasted our time and tarnished our otherwise-sterling reputation.

So put on your big girl or big boy pants, realize that there just might be a better way to do things, and give the old school way a try. FELTG will be right there with you, for better or for worse. If you’re self-important and stubborn, set in your ways, and think that your supervisors are too stupid to handle discipline, then we don’t want to work with you. However, if you believe that employee accountability was always intended to be a front-line responsibility and that people can be educated to do something as straightforward as administering employee discipline, then give us a call: 844-at-FELTG.  Together, we can make the civil service great again. Wiley@FELTG.com

OFO Applies Supreme Court’s Analysis in Young v. UPS to Federal Sector EEO Cases

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By Deryn Sumner

Last year, the Supreme Court issued its decision in Young v. UPS, 575 U.S. __ (2015), to provide guidance as to how claims under the Pregnancy Discrimination Act should be analyzed.  In a 6-3 decision authored by Justice Breyer, the Supreme Court held that the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) should apply to claims raised under the Pregnancy Discrimination Act.  Thus, just as in other claims involving allegations of disparate treatment motivated by discrimination, the employee bringing the complaint must first establish a prima facie claim by showing membership in a protected class, an adverse employment action, and some inference to support that the adverse employment action is related to the employee’s membership in the protected class.  If the employee makes such a showing, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action identified, and then the burden shifts once again back to the employee to show that the reasons given are pretext for discrimination.  Given the similarities in claims of employment discrimination raised under the Pregnancy Discrimination Act to cases raised under Title VII and accompanying statutes, the decision in Young instructing courts to apply this framework to claims of pregnancy discrimination made a lot of sense.  At its core, all of these claims concern an employee alleging he or she is being treated differently because of membership in a class determined to be protected by Congress.

However, it’s always nice to have case law applying Supreme Court framework to federal sector cases and last month, the Office of Federal Operations gave us just that in two cases issued on the same day.

In Roxane C. v. USPS, EEOC No. 0120131635 (July 19, 2016), the complainant alleged that the agency told her, an employee with medical restrictions related to pregnancy, that there was no work available within her restrictions and sent her home without pay. The EEOC found that an administrative judge improperly granted summary judgment in the agency’s favor because genuine issues of material fact remained as to how the agency treated those other employees who requested light duty, but who were not pregnant.  According to the decision, the evidence seemed to show that the agency may have provided work to those who had suffered on-the-job injuries, and thus also had restrictions requiring light duty.  The facts are remarkably similar to those in the Young case.  If true, it appears the complainant may have experienced disparate treatment as compared to others outside of her protected class, just the type of evidence the McDonnell Douglas framework envisioned.

And in the other decision issued that day concerning pregnancy discrimination, Andera P. v. USPS, EEOC No. 0120152639 (July 19, 2016), the complainant alleged she was terminated due to pregnancy for excessive absences for her use of 45 hours of leave during her probationary period.  The EEOC remanded the case for further investigation as to what specific accommodations were requested and not provided to the complainant, specific information regarding her medical restrictions, and whether similarly-situated, non-pregnant employees were allowed to use similar amounts of leave without being terminated.

Both decisions reference and apply the Young framework in remanding the cases for further proceedings.  Sumner@FELTG.com

Transgender Discrimination on Agency Premises is a No-no

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By Deborah Hopkins

I taught a webinar a few weeks ago and covered a case that created quite a bit of conversation, and even some debate. Deryn Sumner wrote about this particular case in the FELTG newsletter a few months ago, but since not everyone had a chance to read that article – or perhaps they read it and still have questions or concerns – I want to revisit it from a slightly different perspective.

Here’s the situation:

A transgender female employee was denied a chance to make a presentation during a Bible study meeting held by an employee-run religious organization that met within a federal agency. The organization was created and recognized under the agency’s Employee Organization Policy, which meant that it was sponsored by a senior executive, met on agency premises, used agency resources (such as email and newsletters), and even received compensation from the agency to travel to events.

The employee was denied the chance to make her presentation, even after she offered to present as a man during the meeting. When asked why the request was denied the organization’s president, also an agency employee, said she did not want to promote a “transgender lifestyle” among the Bible study members because that went against the beliefs of the group.

Many folks on the webinar saw logic in this thought; others did not. Hang with me here.

The transgender female employee filed a discrimination complaint and the agency initially dismissed it for failure to state a claim, asserting that it was the organization’s president acting in that role, and not the agency, that refused to allow the employee to make her presentation.

On appeal, EEOC reversed the dismissal and remanded the case back to the agency after finding that the employee stated a viable claim for hostile work environment harassment.

Why the remand, you might ask? EEOC said that the president’s use of the term “transgender lifestyle” could “reasonably be perceived as offensive, as it is indicating that transgender people somehow are different from others and have a different lifestyle than others, and as a result, they should be treated differently.” EEOC also said that not allowing someone to dress conducive to the gender with which they identify, is “humiliating and dehumanizing” and that refusing to allow a transgender employee to make a presentation “causes further alienation” among coworkers, and interferes with her work environment.  Finally, EEOC said that if the agency failed to take immediate and appropriate action to stop the harassment, the agency could be found liable for the harassment.

So here’s where the discussion came in: a number of participants asked how the EEOC could (or whether it should) get so involved in a voluntary, employee-run organization’s free exercise of religion. How could the EEOC supersede the group members’ decisions to determine who was allowed to make a presentation during a meeting – especially when the person who requested to make the presentation had a lifestyle that did not match the core beliefs of the group?

Some asked whether this perhaps stated a claim of religious discrimination and whether the organization might have standing to file a complaint. EEOC addressed this potential claim, and said that it is a violation of the law to subject one employee to a discriminatory hostile work environment in order to accommodate another employee’s religious beliefs.

Still with me here? Because the organization was created and recognized by the agency’s Employee Organization Policy and used agency resources, the laws that apply to the agency at large (here, we’re talking about civil rights laws) apply to this employee-run organization as well. The agency had the duty to investigate and promptly correct any discrimination or harassment that came from the organization’s members, who were the complainant’s coworkers, because their conduct was reasonably related to the complainant’s work within the agency.

Were it not for this connection with the agency, there would probably not be potential agency liability here. For example, if the group was made up of agency employees but was entirely independent, unaffiliated with the agency, did not use any agency resources, and met after work hours off agency premises, the complainant might not be able to show that her exclusion was reasonably related to her day job.

A word of caution moving forward: the same analysis would apply to similar organizations that attempted to discriminate against others because of other protected classes: race, color, national origin, religion, sex, age, disability, genetic information. Whether you agree or disagree with this reasoning, this remains true: you just can’t do it; Hillier v. IRS, EEOC Appeal No. 0120150248 (April 21, 2016). Hopkins@FELTG.com

A Refinement in the Due Process Dilemma

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By William Wiley

By now, we all know the problem. To satisfy the Constitutional mandate for due process, the Deciding Official in a proposed removal should not rely on anything not in the proposal notice or the employee’s response to the proposal. Violate due process, and the agency automatically loses the appeal. There’s no concept of “Was there any harm?” when it comes to evaluating a due process violation, as there would be in other situations in which the agency makes an error.

As issues before MSPB go, this one has evolved to be particularly onerous. It’s very easy for a Deciding Official (DO) to unintentionally rely on something not before the employee in making a decision. DOs are smart people and they know lots of stuff. It’s up to us practitioners to coach them seriously about relying only on the limited information provided in the proposal and the response.

In my practice representing agencies, I’ve become exceedingly gun shy about the DO relying on ANYTHING not known to the employee. In most of the actions in which I work with agencies these days, the DO goes back to the employee at least once during the notice period either asking for more information or providing the employee new information that the DO has acquired, out of fear that there might be some tiny bit of fact that the Board on review finds to be a due process violation. I’ve half-joked (but only half) that I’m thinking about having the DO send a draft decision letter to the employee for comment prior to issuing the darned thing. That way, the chances would be greatly reduced that she would be relying on some fact that accidentally had not been made known to the employee prior to the final decision being issued. I know, sounds silly, but I’d rather be silly than reversed. Here’s the rule:

When an agency intends to rely on aggravating factors as the basis for imposing a penalty, such factors should be included in the advance notice of the adverse action so that the employee will have a fair opportunity to respond to those factors before the deciding official. Lopes v. Navy, 116 MSPR 470 (2011). If an employee has not been given notice of an aggravating factor supporting an enhanced penalty, an ex parte communication with the deciding official regarding such a factor may constitute a constitutional due process violation because it potentially deprives the employee of notice of all the evidence being used against him and the opportunity to respond to it. Ward, 634 F.3d at 1280; Lopes, 116 MSPR  470, ¶ 6.

Sometimes an employee will raise an issue or make a statement in his oral response that the DO wants to rely upon as an aggravating factor. I’ve wondered, given this era of special sensitivity to due process, whether the DO is safest to tell the employee that she plans to rely on that information, or how she is characterizing that information, and allowing the employee to respond to that prior to making a decision. After all, it’s entirely possible that a DO might misunderstand an employee’s response somehow and thereby rely on an incorrect understanding of what the employee actually was saying.

Well, the good news for agencies is that the DO does NOT have to tell the employee how she is considering the employee’s response. In a recent case, when the DO considered the employee’s response, she drew the conclusion that the employee was demonstrating a lack of remorse. On appeal, the employee claimed that because he was not informed and allowed to respond to the DO’s conclusion that he lacked rehabilitation potential, his due process rights had been violated.

The Board was clear in rejecting this argument. It reasoned that the agency could not have notified the employee that it would consider the lack of remorse in her response because the response postdated the proposal notice. Regulations requires that the DO consider BOTH the proposal and the RESPONSE to the proposal: “In arriving at its decision, the agency will consider only the reasons specified in the notice of proposed action and any answer…” 5 CFR 752.404(g)(1).

The Board members went out of their way to correct the judge’s finding that there was no due process violation because the DO testified she afforded little weight to the lack of rehabilitation potential. “Little weight” is the wrong principle. The correct principle is that the DO can consider the response (without violating due process) without notifying the employee of the conclusions drawn by the DO subsequent to the response. Nunnery v. Agriculture, DA-0752-15-0378-I-1 (June 9, 2016)(NP)

Frankly, this could have gone the other way, with MSPB requiring that the employee be informed of and allowed to respond to any new conclusions drawn by the DO. Fortunately, the Board came down on the side of efficiency and fairness. DOs can now draw their own conclusions based on the facts before them. Because of this decision, we are tweaking the FELTG approach to decision letters a bit. Previously, we have taught that the best decision letter is the decision letter that simply affirms the proposal without any elaboration by the DO. There’s still nothing wrong with that, and simple affirmance is still the easiest-to-defend approach. However, in a case in which the DO feels compelled to add something to the Proposing Official’s analysis, as long as she adds opinion only based on existing facts and not new facts, we think it’s safe to let it go. Wiley@FELTG.com

Misinformation Runs Rampant When the Internet Attempts to Understand Federal Sector Processing

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By Deryn Sumner

Earlier this week, I spent a few minutes poking around the EEOC’s website to see if there was anything of interest to share with you, our FELTG newsletter audience.  I came across a press release titled, “What You Should Know about EEOC and Shelton D. v. U.S. Postal Service (Gadsden Flag case).”  The press release talked about a recent Office of Federal Operations decision.  As I’m always interested when federal sector cases make it to the EEOC’s newsroom, I read it with interest and ended up a bit bewildered.  See, Shelton D. is not a notable decision worthy of a press release.  It’s a case holding that an agency improperly dismissed a formal complaint for failing to state a claim, and ordering the agency to reinstate and investigate it.  The EEOC issues hundreds of these decisions every year.  So why did the EEOC see fit to issue a press release about this decision? https://www.eeoc.gov/eeoc/newsroom/wysk/gadsden-flag.cfm

Well, the case concerns a complainant’s allegation that the U.S. Postal Service created a hostile work environment based on race (African American) and retaliation for prior EEO activity when a co-worker repeatedly wore a hat with the Gadsden Flag on it (commonly known as the “Don’t Tread On Me” insignia), even after management counseled the co-worker not to do so, and subsequently photographed the complainant at work without the complainant’s permission.

The Postal Service dismissed the complaint for failure to state a claim, the complainant appealed, and the EEOC held that it did state a claim, and ordered the agency to investigate it.  As everyone familiar with federal sector EEO complaints processing knows, this does not mean that the EEOC found that harassment occurred, that the complainant’s claims currently or subsequently will have merit, or that the complainant is entitled to any relief.  The decision was simply a procedural reversal instructing the agency to conduct an investigation so that a record upon which a factfinder could determine if harassment occurred would be created.

But alas, unsupported outrage accounts for most of the Internet these days and those who somehow found out and wrote about the decision, simply put, had no idea what they were talking about.  When I searched for references to the decision, I got to see such inflammatory headlines as “Obama Bans Gadsden Flag” and “EEOC Holds Gadsden Flag Is Racist.”  Putting aside whether the flag is racist or not, the EEOC made no such determination in its remand of the complaint. The EEOC simply held that under the regulations at 29 CFR 1614.107, the complaint stated a claim that should be investigated.  And no, President Obama did not weigh in on the EEOC’s decision.

And now the kicker.  The OFO decision remanding the case for investigation was issued in June of 2014.  The decision that appears to have caused so much recent angst was the decision denying the agency’s request for reconsideration, again a simple procedural decision that the EEOC issues by the hundreds every year, which was issued on June 3, 2016.  Again, the EEOC’s June 2016 decision only instructed the agency to investigate the claims, and did not conclude that the actions alleged constituted actionable harassment.

How about we focus our outrage on more important things, like how the EEOC is so understaffed and overwhelmed that it takes almost three years to get a case remanded for investigation.  Sumner@FELTG.com