In Case You Still Believe in Santa Claus

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By William Wiley

Ah, the innocence of youth. Magical beings enter your home and leave gifts, mom and dad are asexual, and our political leaders are making rational decisions based on a careful assessment of the evidence and argument. Sadly, as adults, we find out that real life is a little different.

Let’s take a recent case in point. First, I want to establish that I am not taking a position on who is right and who is wrong in this case; i.e., were the whistleblowers mistreated and the civil service abused by these agency managers. The point of this piece is to point out that how Congress (and the media) reacts to things may not actually be warranted given all the facts.

Here are the high points (or low points, depending on your point of view) from a recent series of articles about the “downfall” of top agency officials at a large federal agency. Based on both facts and allegations in the media, we read:

  • Awards:  One specific top agency official received a $10,000 bonus (more or less) on nine occasions in about a one-year period. That’s an additional $90,000 above his annual salary of about $180,000.
  • Reassignments:  That same top official allegedly forced transfers to punish agency employees who spoke out about security lapses and agency mismanagement.
  • Demotions:  After reporting security violations, an agency employee had his pay reduced two grades.

Here at FELTG, we may not know anything more than what we read in the papers, but we do claim a fair amount of knowledge regarding civil service law. With that in mind, here’s how the above three allegations look to us:

  • Awards:  Employees don’t award themselves. Awards almost always are recommended by the employee’s supervisor and then approved at some higher management level. I don’t think it’s even possible for an employee to refuse an award. At least, I’ve never seen it happen. So why fault the “top agency official” who was on the receiving end of a bunch of suspicious cash awards? Shouldn’t somebody be looking into whoever it was that recommended and approved the awards instead? I can’t tell if the “top agency official” is a good guy or a bad guy, but I can sure tell that he is not able to award himself.
  • Reassignments:  Employees who speak out on matters regarding security lapses and gross mismanagement are legally defined as “whistleblowers.” It is illegal to transfer most any federal employee in reprisal for that person blowing the whistle.  Most every federal agency provides annual mandatory training regarding this right. To stop an improper transfer, all the employee has to do is call (800) 872-9855, describe a situation that is possibly whistleblower reprisal (not prove that it actually is, but just that it might be), and the Office of Special Counsel is empowered to intervene to obtain a stay of the transfer. Therefore, if there actually was an improper transfer, either the employee did not call the toll-free number, or he could not convince OSC that he was possibly the victim of reprisal.
  • Demotions:  Most federal employees have the right to challenge a demotion by filing an appeal with MSPB. Those few who are excluded from MSPB’s jurisdiction have the right to challenge demotions through an internal neutral review process involving several management officials. Employees are routinely notified of these rights at the time the demotion is implemented. Therefore, if there actually was an improper demotion, it was either approved by several agency officials – the majority of whom must have been bad people – or upheld by the bad MSPB, or the demotion was not challenged.

Once more, here at FELTG we are not taking a position on who is right and who is wrong in this scenario. It is even possible that these employees hold some sort of unique appointments in an unusual agency and that one or more of these analyses are off the mark. However, the odds are that we’ve correctly described the “real” facts. Hopefully, we’ve shown that there is a world of difference between reality and what our legislators choose to believe is bad about our civil service system. If there are truly mistreated employees in this scenario, our system has safeguards in place to protect them and undo the harm they have suffered. If there is fault in an employee receiving bonuses, the fault cannot be in the employee because those awards were approved by a higher authority.

Goodness knows we are quick to point out failings and shortcomings in our oversight systems. However, when others see failings where there are none, we have to speak to those, as well. We love our civil service, even though on occasion we disagree with those who oversee parts of it. Wiley@FELTG.com

MSPB’s Non-Precedential Decision Policy is Bad for America

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By William Wiley

Beginning in 1979, MSPB issued two types of decisions: precedential and short forms. The short form says nothing other than a Petition for Review challenge to a judge’s decision has no merit, much like the Supreme Court’s say-nothing orders that “deny certiorari.”

A full “Opinion and Order” precedential decision discusses an important civil service principle, and contributes to the development of federal employment law. The Board’s reviewing authority, the US Court of Appeals for the Federal Circuit, is bound to affirm an MSPB Opinion and Order on appeal unless it is:

  • Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
  • Obtained without procedures required by law, rule, or regulation having been followed; or
  • Unsupported by substantial evidence.”

5 USC § 7703(c); see Terban v. Energy, 216 F.3d 1021 (Fed. Cir. 2000)

About five years ago, the then relatively-new leadership at MSPB decided to replace the say-nothing short form dismissal with a new type of decision, a non-precedential order (NP). These new orders were defined by the Board as not contributing significantly to the Board’s case law, 5 CFR 12901.117(c). In other words, they were intended to dismiss the less-important issues while simultaneous giving the reader insight into the members’ rationale for doing so.

When the NP change was announced, this newsletter argued strongly against it for several reasons:

  • Writing substantive NP decisions in the 60% of the appeals that formerly were short-formed would double the workload at MSPB without any commensurate increase in the value of the decision.
    • An increased workload would result in increased delays in issuing decisions thereby denying appellants a prompt resolution of their cases and increasing the government’s back pay liability in appeals in which a removal was set aside.
  • NPs allow the Board to create secret anti-agency case law, case law that cannot be challenged by agencies on appeal. You see, only significant decisions can be appealed by the government to federal court. As NPs, by definition, are not significant, the Board can give direction to its judges relative to the thoughts of the members via an NP, and an agency cannot do anything about it (whereas an appellant can).
    • Yes, the Board says in the introduction to an NP decision that a judge is not required to follow its reasoning. However, if you do not think that judges read these things and apply the rationale to later cases, you do not know how a judge thinks. If you were a Board judge, and an NP decision said the answer is X, would you not go with X the next time you saw that issue, knowing that if you said Y or Z the members will reverse and remand the case to you? Everybody likes to go home on time, even MSPB judges.
  • NPs confuse consumers: the parties, the courts, and us practitioners. We do not know what to do with them and they double the research case load, although we’re not sure they are worthwhile as precedent.

Here’s an example that reinforces our argument that MSPB made a mistake when it decided to begin issuing NPs. On July 14, 2014, the Board issued an NP order in the appeal of a putative whistleblower. The appellant had disclosed his belief that a private sector company had committed tax fraud. The judge had found disclosures related to misdeeds by private entities were, per se, not the sort of disclosure protected by the whistleblower protection laws. Two of the three members agreed, holding that the whistleblower laws protect those who disclose government malfeasance, not private entity malfeasance. Aviles v. Treasury, DA-1221-13-0518-W-1 (2014).

MSPB Vice Chairman Wagner disagreed. She argued in dissent that the then-recent amendments to the Whistleblower Protection Act expanded the protection of whistleblowers beyond those that report government malpractice, but also to those who disclose waste/fraud/abuse by private entities in their normal course of duties.

This issue is HUGE. If Congress indeed intended to expand the definition of whistleblower to cover those who report non-government bad deeds in the normal course of their duties, as argued by Vice Chairman Wagner, the universe of whistleblowers increases by several-fold, as there are hundreds of thousands of government employees who have the opportunity to do this sort of thing as a routine part of their work. One would think that if one of the three Presidential appointees at MSPB believes this is what Congress clearly intended “as a matter of plain logic,” the Board’s decision in this matter would be worthy of a precedential decision.

Well, the members did not think this way. They decided to hide this intra-Board disagreement in an NP, thereby relegating the competing rationales of the dissent and the majority opinion to the never-never land of Board law.

In response to the NP order denying his appeal, appellant Aviles took the Vice Chairman’s arguments in his favor to the United States Court of Appeals for the Fifth Circuit. As it turns out, this NP decision became the very first decision to be appealed directly to the Fifth Circuit as provided for in the alternative forum provisions of the 2012 amendments to the Whistleblower Protection Act. The Fifth Circuit did three interesting things with this “insignificant” Board order:

  1. Held that it would not decide whether it was bound to provide the 5 USC § 7703(c) (Terban) deference to an NP decisions (the court is just as confused as the rest of us).
  2. Concluded that the US Federal Circuit Court of Appeals, the court that has been ruling on appeals of Board decisions involving whistleblowers for 25 years, is using the wrong evidentiary standard when assessing jurisdiction (e.g., that the motion-to-dismiss standard should be applied to these appeals, not the summary judgment standard used by the Federal Circuit).
  3. That the logic of Vice Chairman Wagner, as argued by the appellant, was “at odds with common sense and principles of statutory construction.” Aviles v. MSPB, 779 F.3d 457 (5th 2015)

Vice Chairman’s rationale was clearly wrong in this matter. However, she was indeed one of the three individuals empowered by the President, with confirmation by the Senate, to make these decisions. Her dissenting logic and arguments should not be relegated to the world of non-precedential orders, especially so when the case involves significant matters of Board jurisdiction and Federal Circuit precedent. Wiley@FELTG.com

Swearing (at?) the Proposal Letter and Other Matters

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By William Wiley

Questions, we get questions. And we got several follow-up questions from a certified practitioner who recently completed our famous FELTG MSPB Law Week seminar. Always good to hear that class participants are picking up on things. Below are my responses, in bold.

  1. Mr. Wiley stated that he now recommends that proposed discipline is sworn by the PO. Is that true for disciple that is not appealable to the MSPB? Yes. Why do you recommend that proposals be sworn to?

By adding the penalty of perjury statement to a proposal letter, the statement is converted from a simple hearsay documenting the agency file to a document having greater evidentiary value. “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.  28 USC 1746. The Board consistently gives significant weight to uncontroverted penalty of perjury statements, and lesser evidentiary value to evidentiary statements made in an unsworn document.  There is always the possibility that a proposing official will not be able to testify at hearing. Adding the penalty of perjury statement converts those factual statements in the proposal – perhaps things that the PO observed personally – into hard evidence that the agency can use to support its case. Without that statement, it cannot use the proposal as evidence of very much. As there is value added and as there is no reason NOT to include the statement, I think it is prudent to do so.

  1. In the class Mr. Wiley said that the deciding official should complete a DF [Douglas Factor] analysis on a worksheet. However, in the version of his book that’s available on CyberFEDS©, the DF analysis is in the document. Which one is correct?

Both are correct. However, attaching the worksheet itself is a stronger approach, and an approach that I developed after CyberFEDS© published the desk book. I believe I wrote the desk book around 2005.  In 2010, the Board began a more scrupulous review of the Douglas Factors. Therefore, my practice evolved.

  1. Mr. Wiley said that if one of our supervisors is confronted with a record that another supervisor gave a lesser penalty, then he could say: “If I was that supervisor, I would have handled it differently.” HR has said that that recommendation is not supported by the case law, and even if a manager would have handled it differently, we are bound by the previous decision, absent distinguishable facts. Do you agree? Is there any case law or other references that support the recommendation?

Davis v. USPS, 120 MSPR 457 (2013): “The deciding official further testified that he was unfamiliar with the [comparator employee] or the circumstances of his discipline, but that he would have removed the [comparator employee] if he had been the deciding official in that case.”

  1. Mr. Wiley said that MSPB is pulling back from the idea that you have to disciple consistently throughout the agency. HR disagrees, and I can’t find any authority in support of the statement.

I reach that conclusion from reviewing how the Board assessed the factors in a recent case like Chavez v. SBA, 2014 MSPB 37, and the facts in the collection of the four 2010/2011 cases that started us down this dark road of comparator employees: Lewis/Woebcke/Villada/Raco. In Chavez, the Board addresses three points that they ignored in the Terrible Trilogy: 1) penalties effected post-removal are due limited weight (the greater the length of time between the two, the less weight the later penalty warrants), 2) different discipline officials in different chains of command can justify different penalties, and 3) the agency need not compare appellant to employees who engaged in similar misconduct, unless that misconduct was actually charged. The discipline officials in Lewis/Villada/Raco were different from the comparators. However, the Board did not consider that when mitigating the penalties in those cases. Yet in more recent cases such as Chavez , the fact that the employees were in different chains of command was a major factor in the Board not mitigating that penalty.

In other more recent cases, the Board has spoken to non-mitigating factors it did not consider in 2010/2011. For example, the Board now considers a lack of knowledge on the part of the deciding officials relative to other discipline to be a non-mitigation factor. Ly v. Treasury, 2012 MSPB 100 (“Any difference in treatment between the appellant and the comparator was not knowing and intentional on the part of the deciding official.”) Knowledge on the part of the deciding officials (or lack of knowledge) was not a consideration in the earlier Terrible Trilogy comparator-mitigation decisions.

Finally, the Terrible Trilogy decisions were issued by Board members Grundmann/ Wagner/Rose soon after Grundmann and Wagner were appointed and began issuing decisions in 2010. Member Robbins was appointed in 2012 subsequent to the Terrible Trilogy decisions to replace Member Rose and immediately dissented from the comparator theory of the Terrible Trilogy. Boucher v. USPS, 118 MSPR 640 (2012). Ms Wagner is now gone and Ms Grundmann’s appointment has expired although she is holding over until after the Presidential election, by all appearances. Putting all of this together leads me to the conclusion that the Board is moving away from its poorly thought out approach in the Terrible Trilogy.

Hope this helps. Best of luck-  Wiley@FELTG.com

This should be GOOD News, not Bad News

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By William Wiley

As we’ve written in this newsletter previously, if your Uber driver picks you up promptly, takes you where you want to go quickly, and is in general nice to you, you rate her 5 stars because she’s done exactly what you wanted.

With this reality in mind, let’s look at some recent numbers from GAO relative to the 2013 federal employee summary performance ratings:

  • Most all agencies have a five-level (5-star) performance evaluation system: Outstanding, Exceeds, Fully, Minimal, Unacceptable.
  • 61% of GS-1 through GS-15 employees were rated either 4- or 5-stars.
  • The higher the grade level, the higher the rating; e.g., 78% of GS-13 and above employees were rated 4- or 5-stars, whereas only 67% of GS-9 through 12 employees received either of these ratings.

One commenter suggested that these findings are a bad reflection on performance management in the civil service by stating, “The GAO report is likely to add fuel to the debate about whether federal performance management is effective.”

No, no they are not. These are wonderful numbers.  They show that 2/3s to 3/4s of federal employees are doing just about the best we can expect from them.  Isn’t this what you would expect from a group of merit-based selectees who are among the best and the brightest? Isn’t that what a merit selection and promotion workforce is supposed to look like, including that those who rise in the ranks to the higher levels get better ratings (because they are better employees)?

It just blows me away when people look at numbers like these and think that there’s something wrong with our civil service performance management system. We get asked to rate and give feedback on so many things these days. If you owned a company and found out that your employees were all rated at the top of a scale, wouldn’t you be delighted? If you drive for Uber, and you consistently get 3-stars, you don’t drive for them much longer.

If people were assigned to work in the civil service randomly, then their performance ratings should follow a bell curve: most in the middle, and fewer 4s and 5s. However, selection into the civil service is the opposite of random. It’s based on merit: talent, education, and experience. Therefore, it should come as no surprise (at least no surprise to those who paid attention in statistics class) that most feds are rated highly.

Goodness knows that agency management could do a better job of removing poorly-performing employees. The Chairman of MSPB said several years ago that 5-7% of the federal workforce is not performing adequately. However, that is unrelated to the fact that most federal employees are doing a good job. That’s why they get good ratings. The world would be a better place if we would accept that we should expect 4- and 5-star ratings from a merit-based workforce, and focus our performance-management energy on getting rid of the bottom of the barrel.

And while we’re at it, making recommendations and all like we here at FELTG know how the government should be run, here are a couple more suggestions to you policy makers:

  • All government performance rating systems should go to a 5-star format. Get rid of the stupid names for levels. “Isn’t Exceptional a better rating than Outstanding?” If it’s good enough for TripAdvisor and Yelp (and Uber and Zagat and just about everybody else), then it should be good enough for the civil service.
  • Service recipients, either internal to the government (e.g., Feds who call an agency Information Technologist for help) or external (e.g., citizens who go to a social security for assistance), should be the primary source of performance ratings.
  • Employees should be required to wear a lapel pen visible to the entire world with their star-rating for the past year. Post ratings on the web.

Performance management systems should be based on both common sense and science. Understanding that high ratings are to be expected from a merit-based workforce satisfies both of those requirements. Wiley@FELTG.com.

Do I Have to Grant an Employee with a Disability Her Accommodation of Choice?

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By Deborah Hopkins

Last week, I was teaching a day on The Federal Supervisor’s Role in EEO to a group of GS-14 and 15 supervisors at an agency in Atlanta. One of the topics that generated a lot of discussion – and about which there was some confusion – was reasonable accommodation for disabilities. Specifically, there were questions about what “reasonable” means, and whether the employee is entitled to the accommodation of her choice.

Now, just to make sure we’re all on the same page, let’s have a quick review. Federal employees (and applicants) are entitled to participation in the reasonable accommodation interactive process in two areas: physical or mental disability (under the Rehabilitation Act/ADA), and religion (under Title VII). Agencies must accommodate (1) the disabilities of qualified employees, and (2) the bona fide religious beliefs and practices of employees – unless doing so would create an undue hardship on the agency.

We won’t get into the process of determining who is a qualified individual with a disability here today, so let’s assume we have an employee who is qualified because she has a medical condition that causes severe back pain, and she needs an accommodation in order to perform the essential functions of her job.

A reasonable accommodation is a logical adjustment to the job and/or the work environment that enables a qualified person with a disability to perform the essential functions of the position without doing harm to herself or others. This does not mean the employee gets the best possible accommodation. Some options for accommodation might be:

  • Accessible facilities
  • Flexible starting or ending times, or brief break periods
  • Telework
  • Reassignment
  • Special software
  • Equipment or devices
  • Furniture and office layout modifications
  • Service animals
  • Hearing interpreters
  • Modifying job duties, without changing the essential job functions

In looking at what accommodations you might be able to provide and determining whether there’s an undue hardship in providing the accommodation, you’ll also want to take into consideration the overall size of your agency’s program, the type of facilities, the size of your budget, the composition and structure of the workforce, and the nature of the accommodation. 29 CFR 1630.2 (p). Agencies beware, though – money is usually not a defensible reason to deny a reasonable accommodation, especially when another accommodation is not available.

Back to our hypothetical employee. The back pain she is experiencing means that she can’t sit for more than 10 minutes at a time, and she has provided acceptable medical documentation that says as much. She generally takes a bus to work and the ride is about 20 minutes, but occasionally she will drive her car and that takes about 15 minutes. She has requested full-time telework in order to accommodate her disability. Do you have to give her full-time telework?

No, you don’t. You might do that, and maybe it’s a good idea, but remember you don’t have to. You’d want to consider things like:

  • Whether the essential functions of the job can be performed at home. If she works on computer systems or with sensitive information that aren’t accessible off-site, telework won’t allow her to perform the essential functions of her job.
  • Whether she requires management oversight in order to meet her minimum performance rating. If the employee has demonstrated that she can’t complete her work unsupervised, you don’t have to give her telework because she asked for it. See Yeargins v. HUD, EEOC No. 0320100021 (EEOC OFO 2010).
  • Whether another accommodation would allow her to perform the essential functions of her job, at the agency. Things like ergonomic chairs, standing desks, frequent breaks to allow her to walk around the building to stretch her back, and other options might be better accommodations than the full-time telework she’s requested.

The bottom line here is that and employee does not get to unilaterally dictate to the agency that she be granted the accommodation she prefers. That’s why the process is called the interactive process; it suggests agencies and employees work together informally to find an acceptable outcome. 29 CFR 1630.2(o)(3). For more on this check out a recent case, Complainant v. Department of Veterans Affairs, EEOC No. 0120122961, (EEOC OFO 2015), in which the complainant requested a number of specific accommodations, and the agency provided alternative accommodations and prevailed in the EEO complaint. Hopkins@FELTG.com

Do Not Extend the Notice Period for a Proposed Removal

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By William Wiley

Cut us, we bleed efficiency. OK, maybe too graphic. Come to our FELTG training and we will teach you how to quickly and effectively hold your employees accountable for performance and conduct while simultaneously providing all the rights the employee has under law.

Recently, we had a Human Resources participant in our fantastic MSPB Law Week seminar tell us that at her agency, during the proposed-adverse-action notice period (e.g., 30 days), the general counsel’s office routinely granted employee requests to extend the response period by 30 days, for a total of 60 days. When our participant questioned the reason for the delay, she says the response she got is that GC wants to be sure the employee gets due process.

Well, that’s a bad reason. I did some case law digging and could not find a single case in which an agency’s refusal to extend a statutory notice period was found to be a violation of due process. Ever. The law says that 30 days is adequate time to respond with a representative. Congress has even identified a couple of situations in which a reduced seven-day notice period satisfies the Constitutional right to due process (e.g., the crime provision and the new quickie SES removals over at DVA). Since we know that 30 days has been defined as adequate, and that there’s no case law contra, why would anyone extend the notice period?

Perhaps it’s fear. In my experience if an employee’s attorney asks for an extension of time, and that request is denied, the employee’s attorney will let loose with a barrage of loud objections: Due process! Right to a representative of his choosing! I’m such a good attorney that I don’t have time to play around! I’ve even seen appellant’s counsel argue that Board decisions finding a denial of a time extension by a judge is somehow related to a denial of an extension by a deciding official. Yes, if you deny the request for an extension, you should be prepared for noisy complaints from the employee’s lawyer (the same noises I would make if I were working that side of the bar). And if you don’t like to be yelled at or otherwise objected-to by opposing counsel, then you may well decide to grant the extension.

Of course, if it was your money that was paying the extra salary required of by an extension, you might balance things differently. What does an extra 30 days cost the government; maybe $10,000 if you figure in the total compensation? That’s not a lot of government money in perspective. However, if it was coming out of your personal checking account, maybe you’d think twice about granting an extension request. It’s easier to say “yes” than it is to say “no,” but that “yes” comes with a significant price tag when it’s your personal money.

Perhaps it’s not fear-of-counsel. Perhaps the extension-grantor is just trying to be nice to the employee, to allow him plenty of time to defend himself. Well, why? Who’s the client for agency counsel? Obviously, it’s the agency. And when you have a proposed removal out there, you have an agency official (the proposing official) who with the assistance of an employment law practitioner is taking the position that the employee should be fired. Therefore, your client has tentatively reached the conclusion that removal is warranted. As an attorney, your role is not neutral. Your role is to represent the interests of your client. That doesn’t mean that you treat the employee unfairly, but it does mean that any decisions you make should be in the best interests of your client. It’s hard to imagine a situation in which allowing more than 30 days to present a defense to a proposed removal is in the best interest of the government. If an employee’s attorney when confronted with a detailed proposal letter plus supporting evidence cannot develop a defense within a few days, perhaps that attorney needs an assistant, or another line of work.

In my practice representing agencies, if opposing counsel requests an extension of time to respond to a removal, I do not grant that request routinely. In fact, I routinely deny the request. However, as this is a line decision in my option, if the client-supervisor concludes that the employee’s attorney has made a good case for needing more time (e.g., lightning strike, unexpected death in the immediate family, taken to the Mother Ship for unscheduled probing), I’m willing to grant the extension IF the employee will request LWOP to cover the extension period. If the employee’s attorney’s situation is dire enough to require additional time to prepare a response, let the employee pay for the additional salary expense. That way, it’s not a matter of whether opposing counsel has a good excuse for needing more time. Rather, it’s a matter of who pays for it. And if I’m agency counsel with a fiduciary obligation to my agency, it’s not going to be the agency that pays. Wiley@FELTG.com

Sanctions: When the Agency Fails To Provide the Complaint File on Appeal

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By Deryn Sumner

We’ve come to the end of the road in our series on when sanctions can be issued in federal sector EEO complaints.  And fittingly, this month we’ll discuss sanctions issued at the end of the road in the administrative process: appeals before the EEOC’s Office of Federal Operations.

Either party can file appeals of final actions to the Office of Federal Operations.  Pursuant to 29 C.F.R. 1614.403(e), the agency must submit the complaint file “within 30 days of initial notification that the complainant has filed an appeal or within 30 days of submission of an appeal by the agency.”  Seems simple enough, right?

Well, every year for at least the past several years, the EEOC has issued sanctions against agencies for failing to comply with this regulation to submit the complaint file. For example, in Amina W. v. Dept. of Energy, EEOC No. 0120113823 (November 17, 2015), the EEOC issued default judgment against the agency because it failed to provide copies of the hearing transcript and did not respond to the OFO’s Show Cause Order as to why it hadn’t.  The decision notes that the agency had repeatedly failed to comply with the EEOC’s orders in the case. As it did not have the hearing transcripts, the Commission concluded it was unable to review whether the administrative judge’s finding of no discrimination was supported, and issued default judgment instead.

Yes, even though the agency won the case at a hearing, it ended up liable for discrimination because of a failure to provide the hearing transcript to OFO.  Finding that the complainant established prima facie claims of discrimination, the Commission determined remedies were appropriate, including providing the complainant a retroactive promotion with back pay, an investigation into the complainant’s entitlement to compensatory damages, and eight hours of in-person training to EEO staff “regarding their responsibilities concerning case processing and insuring that the EEOC is provided complete EEO complaint files.”  [Editor’s note: And once more we see why wise agency counsel settles an EEO complaint even when there is no basis on which to find discrimination. One simply cannot predict what will happen before EEOC. Join us for our Settlement Week seminar in November if you want to learn the tricks of the deal-making trade.]

Similarly in Complainant v. Dept. of Air Force, EEOC No. 0120083446 (September 28, 2015), the EEOC overturned the administrative judge’s decision finding no discrimination issued after a hearing and granted default judgment because the agency failed to provide the complete complaint file to OFO, including failing to provide the complete ROI, motions and pleadings from the hearing stage, and the hearing transcript.  The agency also did not respond to the Order to Show Cause as to why sanctions should not be granted, even though someone from the EEOC called the agency to confirm it received the notice.  As part of the grant of default judgment, the Commission ordered the agency to retroactively offer the complainant a position with back pay and conduct an investigation into entitlement to compensatory damages.

So, we know what the worst case scenario is if an agency fails to provide the complete complaint file to OFO.  Let’s look at what an agency can do to avoid such severe sanctions.  The facts in Denese L. v. Dep’t of Interior, EEOC No. 0120130297 (May 13, 2016) start off looking as dire to the agency as the cases discussed above.  When the agency provided the complaint file, it did not include any deposition transcripts, the prehearing report, or discovery documents.  After the EEOC emailed the agency about these omissions, the agency provided a copy of the complainant’s deposition transcripts, but not the remaining transcripts and exhibits.  The EEOC issued a Show Cause Order and unlike in the other two cases, the agency responded by submitting the missing documents and arguing that sanctions should not be imposed because it did not realize any other documentation was missing until February 2016, and it took a long time to obtain the missing documentation because it had to be retrieved from an archive.

The Commission did not credit the agency’s argument that it did not realize until recently that documentation was missing, noting that the agency’s iComplaints administrator received notice on May 19, 2015 and, regardless, the Commission’s regulations require production of the complaint file.  However, the Commission found, “because the Agency ultimately submitted the missing documentation, and the missing documentation was remotely stored in archives, we determine that sanctions are not appropriate in this case. However, the Agency is strongly reminded that failure to submit to the Commission the complete record, within the applicable time frame, may result in sanctions against the Agency in future cases. In particular, the Agency should especially focus on developing procedures that allow it to promptly locate and submit missing documents. Further, the Agency should take particular measures to ensure that it is accounting for and submitting to the Commission all documents from the hearing stage, whether an AJ has issued a decision or remanded the case to the Agency for a decision on the record.”

The Department of Interior escaped with only a scolding because it provided the requested documentation and provided a reason as to why it did not do so prior.  The best practice is to make sure you submit the complete complaint file in the first place.  If facing a Show Cause Order, provide all of the requested information and hope you have a reason why the agency did not do so before. Sumner@FELTG.com

This One is Difficult to Report

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By William Wiley

As some of you might remember, late last year here at FELTG, we embarked on a mission we had never undertaken before. We decided to conduct a highly-scientific survey of all the attendees at our training programs to try to get an answer to what I think we would all agree is a highly pressing question:

Why don’t federal supervisors fire more bad employees?

The impetus for our doing this was in large part a response to all the negative press we civil servants have been receiving recently relative to accountability. It’s in the papers, on the evening news, and the subject of Congressional oversight committee meetings. Presidential candidates have campaigned about it. MSPB has dutifully reported the dismal numbers of successful removals and the extraordinary length of time it takes to make them happen. DVA and DoD have seriously looked into positioning their employees so that they would be outside of MSPB jurisdiction of removals, believing that the Board is the source of all the problems.

So we decided to survey you guys who are closest to the issue: you front line supervisors, union officials, human resource specialists, and agency legal counsel. Many of you see this stuff every day, and we thought it worthwhile that someone asks you what you think. Not that the opinions of the members of Congress are necessarily wrong. It’s just that we think we should find out the answer from the horse’s mouth (rather than some other horse body part).

Our survey was exceedingly simple. The single relevant question was phrased as follows:

Many people believe that agencies do not fire enough bad employees, that agencies should do more to hold employees accountable for conduct and performance. If you think this is probably true, how would you divide 100% of all the causes among the following categories?

Following the question, we provided a list of about a dozen possible causes. Things like:

______                        Lack of knowledge in the legal support staff

______                        Lack of knowledge by senior management

______                        Fear of reversal on appeal in human resources

______                        Fear of reversal on appeal in the legal support staff

______                        Desire not to hurt the employee by the front line supervisor

______                        Desire not to hurt the employee by senior management

The survey takers (and our many thanks to those of you who took the time to give us a response) were asked to divide 100% among as many categories as were relevant. Some participants went with two or three categories, maybe 30, 40, and 30%. Others went into much more detail, ascribing 3-10% to almost every category. Amazing how people respond to surveys.

Well, the results are in. After collecting about 700 responses, figuring out how to use Excel, and then crunching the numbers, we came up with clear winners. And, my goodness, were they clear. Of the 100 percentage points that could have been award, 78 of those points were split between just two categories, in order of responses:

  1. Lack of knowledge on the part of supervisors
  2. Lack of knowledge on the part of human resources specialists

So why are these results difficult for us to report? Because here at FELTG, we make our payroll each month by teaching supervisors and HR specialists (and attorneys and union representatives) how to hold employees accountable. It is clear that we have a big bias, and I wouldn’t blame a reader from thinking that our bias shows through. As my grandmother used to say, “Never ask a barber if you need a haircut.” An obvious corollary would be, “Never ask a training company if you need training.”

The best I can do is to tell you that we tried as hard as we could to be neutral. While I’ll concede that maybe the answers would have been different if we had asked this question outside of a training room, of individuals who were not actively participating in training at the time of the responses. However, we don’t have that luxury. We had to play the cards dealt to us, and classroom participants are who you dealt us.

Maybe our little survey will motivate those of you in a position to conduct your own survey, away from a classroom, to see what kind of answers you get. This is not a question that should be answered from a gut feeling. It should be answered based on facts, facts that are perhaps different from agency to agency.

But until that happens, our FELTG answer remains the answer to disprove. We put on our big-boy and big-girl pants, asked the tough question, and got an answer that makes sense to us. If you can do better, go for it. And if you’re a policy maker, until you get a better answer on your own, maybe you should consider throwing some resources into training your supervisors and your advisors. Because that’s what the most recent highly-scientific survey says you should do.

FELTG operators are standing by: 888-at-FELTG. Wiley@FELTG.com

We Gotta Have a Rule

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By William Wiley

Questions, we get wonderful questions here at FELTG. This one is from a somewhat frustrated practitioner that doubts that MSPB knows what “abuse of authority” really is. And it involves an area commonly misunderstood, right at the heart of our merit system.

Dear FELTG-

Here is a brief summary of what occurred in a case that recently went bad. I could use a little help in understanding why MSPB did what it did:

Appellant was the selecting official for the positions filled by the two applicants.  The vacant positions were not announced on the USAJOBS web site or otherwise publicly posted.  Appellant did not check to see if there were any qualified preference-eligible veterans who might be noncompetitively hired for the positions.  Instead, Appellant contacted the two applicants – and, only the two applicants – and encouraged them to apply for these unannounced and unposted positions.

Appellant knew the two applicants when they worked together previously.  The two applicants are not veterans and, at the time of their hiring, they had no prior or current federal service.  When appellant contacted one of the applicants, he told appellant that his application for a previous police officer vacancy with the agency, which was announced on the USAJOBS web site, had been rejected.  Appellant testified that he assumed that the applicant’s application for this previous vacancy had been rejected because he is not a veteran.

Appellant advised the two applicants to apply for the unannounced police officer positions using Schedule A and sent them an example of a Schedule A letter.  Schedule A is a noncompetitive hiring authority and only severely disabled individuals qualify for a Schedule A appointment.  Office of Personnel Management regulations, found at 5 C.F.R. § 213.3102(u), state that Schedule A appointments are reserved for individuals “with intellectual disabilities, severe physical disabilities, or psychiatric disabilities.”  This section defines the term “intellectual disabilities” to mean “only those disabilities that would have been encompassed by the term ‘mental retardation’ in previous iterations of this regulation and the associated Executive order.”  5 C.F.R. § 213.3102(u)(2).

After sending the two applicants example letters to qualify them as noncompetitive Schedule A applicants, appellant gave them further advice on their noncompetitive applications for the positions.  In a series of e-mails referenced in the initial decision, appellant reviewed one applicant’s resume and told him to remove appellant as a reference because it “wouldn’t look good and could be looked on as per-selection [sic].”  The applicant also told appellant in another series of e-mails that he had asked his treating physician to complete a Schedule A letter, but that his physician “didn’t feel comfortable saying I was disabled because my lung issue is a mild one.”  After the applicant asked appellant to “Let me know if there is a way around this, or if there is something else I can do,” appellant responded “I would get another doctor then. The only way in is with that letter.”  (emphasis added).

Appellant testified that in stating that the “only way in” is with a Schedule A letter, he knew that he could not hire the applicant without the Schedule A letter.  Appellant further testified that he knew that the applicant was not otherwise eligible for this unannounced vacancy because he is not a veteran.  As appellant directed, the applicant obtained a Schedule A letter, which was completed not by his treating physician, but by a physician at an urgent care facility.  The two applicants then provided appellant their resumes and completed Schedule A letters, and Appellant hand-delivered the documents to the Human Resources Specialist handling the hiring for these positions.  Appellant admitted hand-delivering the applications to the HR Specialist.  The Specialist testified that in his experience no supervisor other than appellant had ever handed him a Schedule A letter on behalf of an applicant.

Appellant told the Specialist, at the time he handed him the documents, that he would like the two applicants to be considered for these vacant positions.  Because appellant had not announced the positions, the Specialist testified that he understood that appellant wanted a non-competitive referral for the vacant police officer positions.  Appellant selected the two applicants  the same day he received the certificate and without interviewing them.

The Board states in the final decision “On petition for review, the appellant argues that the agency failed to show that there was anything improper about the assistance that he provided to [the applicants] and that it therefore failed to show that he abused his authority. We agree.”

What else would an agency need to prove to show favoritism, pre-selection, and, ultimately, an abuse of authority as a selecting official??

And our FELTG response:

Thanks for your patience on this one. Here’s what you’ve run up against.

As we teach in our MSPB Law Week (and UnCivil Servant on-site seminar for supervisors), an agency needs to satisfy five requirements to be able to take an adverse action:

The Five Elements of Discipline are –

  1. There is a rule (because we define misconduct as violation of a rule),
  2. The employee knows the rule,
  3. The employee broke the rule,
  4. The penalty is reasonable, and
  5. The agency provided the employee due process.

The agency got tripped up here at No. 1. There is no rule against favoritism or pre-selection in the civil service. I know, hard to believe. But this has been the context since I started in the 70s. In fact, the old Civil Service Commission even had a point paper it circulated back then that said that pre-selecting individuals who were especially trained and favored by the selecting official for the purpose of affirmative action was completely in line with the merit system AS LONG AS the eventual selectee was qualified on merit for the position.

That’s the danger of taking an adverse action without having a black-and-white rule we can point to. Without a rule, we have to fall back on what the employee should have known the rule to be, and then we get into this vague, undefined, never-never land of what the employee believes, what the Board believes, and what we as management believe.

So you and I might agree that pre-selection is bad. But this supervisor has never been told that. Separately, there’s no case law to support a presumption that pre-selection is bad, and especially important is that there are no federal laws or regulations that specifically outlaw preselection. Therefore, we’ve failed to satisfy Element One and we are doomed.

DVA could make a rule that prohibits preselection and favoritism. If it did, then it could hold employees accountable for violating that rule, and thereby abusing their federal authority. But it has not. Therefore, in part because it has always taken this position, MSPB held that preselection is not inherently a violation of a rule, and cannot be the basis for discipline.

Hope this helps for the next time. Wiley@FELTG.com

Supreme Court Rules On When 45-Day Time Limitation Begins for Initiating EEO Contact on Claims of Constructive Discharge

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By Deryn Sumner

I previously wrote about the Supreme Court’s grant of certiorari in the case of Green v. Donahoe in May 2015 as well as the oral arguments heard by the Justices in December 2015. The Court took up the case to address a circuit split as to when a federal employee must contact an EEO counselor to allege a claim of constructive discharge: when an employee resigns (as the First, Second, Fourth, Eighth, and Ninth Circuits held), or at the time the employer commits the last act alleged to be discriminatory (as the Seventh, Tenth, and D.C. Circuits held).

To recap the facts of the case, Mr. Green worked for the U.S. Postal Service and filed an EEO complaint in August 2008, arguing that he was not selected for a promotion because he was African-American. He filed another formal complaint alleging retaliation in May 2009. After he filed his formal complaint, the Office of Inspector General began investigating him for delaying the mail.  The IG ultimately concluded that Mr. Green did not commit misconduct; however, his managers placed him on emergency off-duty status after the interview anyway.  A few days later, Mr. Green and the Agency entered into a settlement agreement which provided that he would use leave to stay on the payroll until March 31, 2010, after which time he would either retire or accept a downgrade to a position 300 miles away.  Mr. Green subsequently contacted an EEO counselor to allege that the agency constructively discharged him by forcing him to retire under the settlement agreement.  After exhausting his administrative remedies, he filed in U.S. District Court and it concluded he had not made timely EEO counselor contact.  Mr. Green appealed the decision to the Court of Appeals for the Tenth Circuit and the Court of Appeals agreed that Mr. Green’s EEO counselor contact was untimely because it was beyond the 45 day timeframe.

In a 7-1 decision issued on May 23, 2016, the Supreme Court vacated the decision of the Court of Appeals and held that the 45-day window begins running only after the employee resigns.

The majority opinion began its analysis by reviewing the Commission’s regulation at 29 C.F.R. 1614.105(a)(1), which states, “An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” The Court did not find that regulation helpful, noting that the reference to “matter” does not identify whether that means the employee’s actions (here, an employee’s resignation) or the employer’s actions (here, the settlement agreement).

Looking to Black’s Law Dictionary and other canons of interpretation, the Court concluded that the “matter alleged to be discriminatory” in cases alleging a constructive discharge claim includes the date of the employee’s resignation.  The Court provided three reasons for this holding: (1) that in a constructive discharge claim, a resignation is part of the “complete and present cause of action” necessary before the 45-day time limit begins to run; (2) the regulation at 29 C.F.R. 105 does not contain any language that is contrary to this idea; and (3) a catch-all of practical considerations, which the Court identified as not making it difficult for a layperson to invoke the protections of the civil rights statutes, to support this conclusion.

 

Justice Sotomayor delivered the opinion of the Court.  Justice Alito filed a concurring opinion and Justice Thomas issued a dissenting opinion.  The Court vacated the grant of summary judgment and remanded the case for further proceedings.  And thus ends, for now at least, the excitement of the Supreme Court delving into the quirky EEO federal sector process.  Sumner@FELTG.com