MSPB’s Statistics for 2015

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By William Wiley

The Board published its annual summary of cases decided a couple of months ago. Normally, I dig into those win/loss tables with glee, separating the agencies who won most of their appeals from the pitiful losers who are wasting the government’s money. Yes, we are not happy here at FELTG unless we are pointing out where someone else made a mistake.

Unfortunately, in this report, there was no joy in Mudville. That’s because most of the agency-specific data mixed furlough appeals with other adverse actions such as removals. And as there were many, many furlough appeals, with agency success rates hovering in the 99% range, we really couldn’t tell which agencies were doing a good job of holding employee’s accountable for misconduct, and which ones were not. So no opportunity for us to write a snarky finger-pointing article about the Biggest Loser agencies for 2015. Poop.

However, the report did give us some across-the-board numbers of interest to those of us who care about federal employment law, numbers that exclude the anomaly of all those furlough appeals. When we use that filter to look primarily at removals, here’s what we find:

  • 80% is a repeating statistic. In non-furlough removals, MSPB upheld the agency’s action in 80% of the cases in which a decision was issued. Similarly, the Board members agreed with their judges’ outcomes in 80% of appeals in which there was a petition for review filed. As you’ve read in this newspaper, FELTG takes the position that after 40 years of learning this law, the Board should be upholding agency removals close to 100% of the time. Federal agencies should not be making critical mistakes in one out of five dismissal actions.
  • Half of 80% is 40%. And that’s the share of MSPB’s non-furlough case load devoted to reviewing removals (and a few long suspensions and demotions) for misconduct.
  • About 10% of the Board’s caseload is devoted to protecting veterans rights (USERRA/VEOA) and another 10% of the caseload is devoted to protecting whistleblower rights (IRA). You readers who are purists recognize that I’m doing some generalization here, but I know that you’ll cut me some slack as the point here is relativeness, not specificity.
  • 60% of all initial appeals settled, a statistic that is steady year in and year out. That’s why, among other reasons, here at FELTG we’ve decided to offer an open-enrollment seminar in the fall specifically to teach settlement options and skills. We may think of ourselves as litigators, but the numbers say that we actually are more likely to be deal-makers.

The above is relatively typical for MSPB, with no great surprises in the statistics. However, there are a few findings that are worth an extra degree of thought:

  • 5% of the Board’s non-furlough caseload last year was probationary terminations. Even though the appeal rights of terminated probationers is severely limited, smart agencies will have documented for the record why the employee was released during probation. You don’t need much in the way of post-employment misconduct/performance procedures to terminate a probationer, but you still will want to have a legitimate reason documented in the file, both for the possible MSPB challenge as well as the inevitable EEO complaint.
  • Only 2% of the Board’s decisions resulted in mitigation of the penalty. With all the whining many of us do about comparator employees and judges making management penalty decisions, you’d think that number would be higher. Well, it’s not.
  • 3% of the caseload in 2015 was appeals of unacceptable performance removals under 5 USC 432. This lowly statistic has been relatively steady for maybe 20 years. With the frustration shown by Congress and certain members of the public directed toward “bad civil servants who can’t be fired,” one might think that this number should be higher, mightn’t one.

The big number for MSPB last year was the overall production rate. The Board issued over 28,000 decisions including all those furlough appeals. That’s a higher volume than produced by MSPB since the appeals of all those striking PATCO employees back in the early 80s. Once more, the good people who work at the Board hunkered down and dispensed justice both expediently and (usually) fairly. We may not agree with all their opinions and procedural quirks, but we have to admit: they know how to do what they’re being paid to do. Wiley@FELTG.com

Non-Pecuniary Compensatory Damages Awards in 2015: A Brief Overview of Trends

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By Deryn Sumner

As I promised last week, here are some facts and figures from decisions awarding non-pecuniary compensatory damages issued by the EEOC’s Office of Federal Operations in calendar year 2015.  I’ll start with a caveat.  This is based on my review of the decisions issued by the EEOC’s Office of Federal Operations which I rely on Westlaw to accurately provide to me.  Although I briefly review every decision that makes it to Westlaw for publication to find the notable ones, it’s entirely possible, and rather likely, I missed a few. 

By my count, in 2015, the Office of Federal Operations issued 40 decisions addressing awards of non-pecuniary damages in either Final Agency Decisions (FADs) or final actions issued after decisions from administrative judges.  The lowest award was, not surprisingly, $0 (Gregg Y. v. TVA, EEOC No. 0120132920 (November 17, 2015)) and the highest award was $250,000 (Augustine S. v. DHS, EEOC No. 0720110018 (October 22, 2015)).  Nineteen decisions addressed appeals of awards issued by agencies in FADS and 21 addressed appeals filed by either party regarding awards issued by administrative judges.  Of the 21 decisions addressing awards issued by administrative judges, the Commission affirmed them with three exceptions: in Complainant v. Dep’t of Transportation, EEOC No. 0120120933 (February 20, 2015) the EEOC increased an award from $45,000 to $60,000 and in Complainant v. DHS, EEOC No. 0720130035 (October 20, 2015), the EEOC increased an award from $55,000 to $125,000.

The only decrease of an award occurred in Complainant v. Dep’t of Air Force, EEOC No. 0720090009 (June 5, 2015), where the EEOC decreased an award from an administrative judge of $100,000 to $25,000, finding the administrative judge’s award was improperly “punitive” in nature.

In the 40 decisions addressed, the EEOC increased the award of compensatory damages in fifteen of those cases.  Twenty-four decisions awarded $50,000 or less in compensatory damages. Only eight of the decisions awarded non-pecuniary compensatory damages of $100,000 or more.  There were some common awards as well, which to me highlighted the imprecise nature of trying to compensate people for emotional and physical harm with money.  Four decisions awarded $10,000; five decisions awarded $50,000; and four decisions awarded $60,000.  Did these employees suffer exactly these specific amounts of harm?  Of course not.  The process is imperfect and based on assumptions and guesswork.

The biggest monetary change as a result of an appeal was Brendon L. v. USPS, EEOC No. 0120141161 (February 3, 2015), where the Commission increased an award of $13,000 issued by an agency in a FAD to $175,000.  Other notable increases were Complainant v. TVA, EEOC No. 0120133384, 0120133385 (September 15, 2015) (increasing an award from $1,000 to $35,000); Complainant v. Dep’t of Veterans Affairs, EEOC No. 0120140216 (February 25, 2015) (increasing the award from $30,000 to $100,000); and Complainant v. USPS, EEOC No. 0120141161 (February 3, 2015) (increasing the award from $13,000 to $150,000).  These cases reflect an agency’s tendency to undervalue claims of damages when issuing awards in FADs.  Sumner@FELTG.com

MSPB Fails to Understand Its Role in Adjudication

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By William Wiley

Once again, I willingly choose to engage in the crime of lèse-majesté. Consider the following exchange:

Bill:         Hey, Deb, how did you get to work today?

Deb:        Well, I drove my Ford, as usual.

Bill:         You’re lying. I saw you driving a truck.

Deb:        I wasn’t lying. I drove a Ford like I said; it just happened to be a truck.

Bill:         No, when you said a “Ford,” I decided that you really meant to say “car.” When I saw that you weren’t driving a car, I concluded that you were lying.

Doesn’t seem quite fair, does it. Deb said one thing; Bill re-characterized it as something else; then Bill decided that Deb was lying about the something else. It would seem that a person should be held accountable for doing what she says, not what someone else thinks she meant when she said it.

And that’s exactly what the Board said about 20 years ago in Otero v. USPS, 73 MSPR 198 (1997). In that seminal opinion, the judge had re-characterized the agency’s charge into something he thought better fit the circumstances, and then found that the re-characterization was not proven.  In its wisdom, the Board said the judge was wrong to re-characterize. Noting that 5 USC Chapter 75 states that the agency must tell the employee the “reasons” for the removal, and that the narrative paragraph the agency used states facts that are a statutory “reason,” the Members faulted the judge for the re-characterization and reversed his logic as unsound. That rationale is very much like the rationale that leads to the conclusion that Bill’s logic is unsound and unfair when he says that when Deb said “Ford,” she meant to say “car.”

Unfortunately, the Board appears to have reverted to the pre-Otero unfair way of doing things. Here was the charge and some samples of the specifications in a recent removal, O’Lague v. DVA, 2016 MSPB 20:

Charge: Inappropriate Conduct

Specification 1:  On 4 February 2015, you recorded in the VA Police Daily Operations Journal (VAP DOJ) that, at 0330 hours, you conducted a vehicle patrol of all parking lots, roads and grounds. However, Officer Bright testified that he and Officer Brad Huffman-Parent had possession of the keys for both VA Police vehicles at that time and you could not possibly have conducted such a patrol.

Specification 2:  On 4 February 2015, you recorded in the VAP DOJ that, at 0358 hours, you conducted a vehicle patrol of all parking lots and roads. However, Officer Bright testified that he and Officer Brad Huffman-Parent had possession of the keys for both VA Police vehicles at that time and you could not possibly have conducted such a patrol.

Specification 3:  On 4 February 2015, you recorded in the VAP DOJ that, at 0600 hours, you conducted a vehicle patrol of all parking lots, roads and grounds. However, Officer Bright testified that he and Officer Brad Huffman-Parent had possession of the keys for both VA Police vehicles at that time and you could not possibly have conducted such patrol.

On appeal, the judge, then the Board, concluded that these seven specifications actually were charges of “making false statements” EVEN THOUGH THERE ISN’T A SINGLE FREAKING “F” WORD IN SIX OF THE SPECIFICATIONS! And once that unjustified leap of conclusion-drawing is made, the agency was held accountable for not only proving the facts (the “reasons”) in the specifications, but also the elements of a Falsification charge:

    1. That there was false information,
    2. Knowingly provided,
    3. With the intent to deceive the agency, and
    4. For personal gain.

Hey, Board. If DVA had wanted to charge “Falsification,” it knows how to charge “Falsification.” It clearly did not intend to charge falsification because it labeled the misconduct with the generic charge of “Inappropriate Conduct” followed by specific factual statements as to what the employee did that was inappropriate, as clearly allowed for in Otero.  The Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency; the Board may not substitute what it considers to be a more adequate or proper basis. Gottlieb v. DVA, 39 MSPR 606 (1989). With all due respect, you are not in the charging business.

While I’m on a roll lecturing the Board, would you guys please stop talking like a bunch of lawyers who fell asleep during the Plain English class? How about “reasonable” instead of “did not exceed the bounds of reasonableness,” “serious” instead of “nonfrivolous,” and “lied” instead of “not credible”? We’re about to get a new President, and it may be someone who prefers simple words. Make America strong again by using plain English.

Some might say that since the Board eventually upheld the charges in O’Langue, no-harm no-foul. Well, those some would be wrong. This is an ugly road for the Board to go down. MSPB’s role in this business is and always has been to adjudicate the charges brought by agencies, not to come up with charges on its own, and then decide whether they have been proven. Agencies should live and die by their characterization of the charge.  MSPB has long held that an agency is bound to prove what it charged, not what it could have charged (e.g., charge “Theft” and you’d darned sure better have proof of an element of permanent deprivation because the Board will not re-characterize your charge to some lesser charge such as “Unauthorized Removal”). The Board is out of line when it labels acts of misconduct differently from what the agency labeled them, thereby retroactively changing the agency’s proof burden after the removal is taken. You can’t change the rules after the game has been played (unless, of course, you’re running a political convention).

By the way, if an agency charges “Inappropriate Conduct” and the Board on appeal re-characterizes the charge into “Falsification,” has the Board not violated the employee’s right to due process? MSPB sure beats up on Deciding Officials who testify on appeal to regarding a charge that was not noticed. Does not the same logic apply when the Board comes up with a new non-noticed charge? Hmmm.

In O’Lague, DVA said the employee was driving a Ford. The Board said that the agency was wrong, that a Ford is not a truck. And the Board is thereby driving me freaking crazy. Wiley@FELTG.com

Stranded on a Sand Pile: Vehicle Misuse – Charges Sustained

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By Barbara Haga

In the past two columns we reviewed cases where misuse of the government vehicle was not sustained.  This month we will look at a case where the Board, and the Federal Circuit, upheld the disciplinary action.

Stranded on a Sand Pile

This case is relatively recent and has been discussed in some MSPB updates at training events that I have attended.  But, the journey to a sustained removal was a difficult one for the Army, and the facts are so intriguing.

The details of the events and the charges are contained in the Board’s decision Hoofman v. Department of the Army, SF-0752-11-0266-I-1 (2012).  The Federal Circuit sustained the Board’s ruling in a non-precedential decision titled Hoofman v. Department of the Army, 2013-3029 (Fed. Cir. 2013).  Hoofman was a Construction Control Representative with the U.S. Army Engineer District in Anchorage, Alaska.  Late one night, Hoofman was driving home in a government vehicle when, through a chain of events that are not quite clear, he stranded the vehicle on top of a sand pile.

He tried to free the vehicle from the sand pile by switching the gears back and forth but was unsuccessful.  In a statement, Hoofman gave an account of what had happened.  He said he was driving alone and had not been drinking when the car became stuck.  When he could not get the vehicle off the sand pile, he walked to his apartment nearby.  He admitted that he consumed alcohol at the apartment.  At about 1:00 a.m. he was walking back to the truck and met two individuals and asked for their assistance to get his truck unstuck.  The two agreed to help if Hoofman would give them a ride afterwards, to which he agreed.  They could not get the vehicle unstuck.  Hoofman could not recall when the two individuals got into the vehicle.

The police arrived at the scene at around 1:30 a.m. and observed the vehicle, Hoofman, and two other passengers inside the stranded vehicle. Hoofman refused to submit to a chemical breath test.  The next day Hoofman pled guilty to a charge of Refusal of Breath Test, which resulted in the Alaska court revoking his driver’s license, requiring him to use an ignition interlock system and to spend time in jail. The following morning, he contacted his supervisor and requested two weeks of leave due to personal family reasons, but at that point did not tell his supervisor about stranding the government vehicle, the fact that it was impounded, or his arrest.  That information was not disclosed until he returned to work nearly two weeks later.

The agency removed Hoofman based on four charges:

  • Charge 1: Driving a government vehicle while under the influence of alcohol
  • Charge 2: Using a government vehicle for other than official purposes
  • Charge 3: Loss of his driver’s license for one year and having to use an ignition interlock device for one year after regaining the privilege to drive
  • Charge 4: Attempting to deceive his supervisor.

The Board’s decision noted that Hoofman’s job required him to travel to remote places and to work independently.

In a surprising twist, the AJ did not sustain any of the four charges.  The agency used an affidavit from the charging officer who responded to the scene to address charges one and two, and the AJ ruled that that was hearsay and had little probative value and did not sustain those charges.  The AJ did not find Hoofman’s request for leave for family reasons as a deception; she ruled that it did not meet the definition of “deceive” and that Hoofman did not personally gain from not providing the information after the vehicle and his arrest when he contacted his supervisor about the leave.  The AJ found that, although Hoofman’s license was “revoked” for one year, he did not “lose” his license for one year as charged by the agency because the appellant held a valid driver’s license, albeit one limited to driving with the interlock system, within approximately five months of the incident.

It seems that the AJ made some unusual rulings in this case, but there is a lesson to be learned about properly writing charges in this case.  The agency petition for review only challenged the rulings on three of the four charges.  The Army did not challenge the AJ’s decision on the charge regarding loss of the driver’s license.  Charging loss of the license for one year and adding in the use of the ignition device made the charge complicated beyond what was necessary to show that he would not be able to drive for work purposes.

The MSPB overruled the AJ and sustained Charges 1 and 2 based on admissions made by the employee.  The Board relied on the definition of driving under the influence as defined in Alaska’s statute.  The key factor here was that Alaska’s courts had defined the term “operate” a vehicle to mean more than driving the vehicle, but the actual physical control of a vehicle with the motor running.  The Board noted that this definition did not require that the vehicle be capable of movement.  Hoofman did not dispute that he was in the driver’s seat with the engine running when the officer responded. He also admitted that he attempted to remove the vehicle from the sand pile after he had been drinking by engaging the drive and reverse gears.  The MSPB also found that there was ample evidence that the employee was under the influence of alcohol based on the fact that he admitted that he had been drinking and declined to take a breathalyzer test. The Board also relied on the charging police officer’s affidavit, which noted that the appellant had bloodshot and watery eyes, slurred speech, a swaying stance, and a strong odor of consumed alcohol.

Charge 2 regarding use for unofficial purposes was supported because Hoofman acknowledged that he offered to give a ride to two unidentified individuals in exchange for their assisting him in removing the vehicle from the sand pile. The Board noted that the fact that he was unable to free the vehicle from the sand pile and complete the unauthorized trip did not disprove the charge.

The Board also found Charge 4 was supported because the AJ misconstrued the agency’s charge.  The AJ likened the charge of attempting to deceive the supervisor as a falsification charge, but the Board found it more similar to a lack of candor charge.  The decision states, “We find that the appellant should have told his supervisor about his arrest and the impounding of his government-owned vehicle in order to make his stated reason for requesting leave ‘accurate and complete.’”  The Board also found that although Hoofman eventually told his supervisor about the incident before the supervisor could find out for himself did not change the fact that the appellant had concealed the matter from him for nearly two weeks.

Based on the three charges the Board sustained the removal, and in a brief decision, the Federal Circuit supported the Board’s ruling.

Haga@FELTG.com

Preponderance of Evidence Revisited

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By William Wiley

We’ve all been frustrated at one time or another with the help (or non-help) we’ve received from an unfriendly Information Technology specialist, some of which live half-way around the globe. Did you ever slam down the phone and wish you could just fire them? Well then, you’ll be interested in the following evidence in a removal of a close-by IT specialist for discourteous behavior, an employee who had previously been suspended for 7 days (for similar discourtesy), then 14 days for failing to follow orders.

Specification Proof In Support of Proof Against Board Ruling
1.1. Appellant called a customer a jerk. Customer testified that appellant said he was “acting like a jerk” or “words to that effect.” Appellant denied using the word ‘jerk.” The customer’s testimony was equivocal. Although customer’s testimony that appellant was “rude” was not equivocal, that was not the charge. NOT SUSTAINED.
1.2. Appellant was loud and discourteous to a customer, a senior agency manager. Customer testified that appellant was loud, belligerent, used hand gestures, leaned forward, and conveyed an attitude she was unwilling to provide assistance. Appellant denied being discourteous or loud. Although perhaps unpleasant, it is debatable whether appellant’s behavior rose to the level of discourteous. NOT SUSTAINED.
2.2. Appellant got in the face of a coworker with a customer and said animatedly, “Are you monitoring me now, too?” The coworker testified that the interaction occurred as charged. There were tensions in the workplace. Tensions go to penalty, not to whether misconduct occurred. SUSTAINED.
2.3. Appellant was routinely discourteous, talked bad about other elements of the organization, was a bully that liked to intimidate others, and treated people in a humiliating manner. A customer stated the facts in the charge in a sworn statement. The interactions were confrontational, based on organizational friction, but not discourteous. As there was no testimony or other evidence to support these generalized accusations, NOT SUSTAINED.
2.5. Appellant was rude and disrespectful toward her former supervisor by yelling at him across a parking lot, “Don’t you ever come into my workplace again.” The former supervisor stated the facts in the charge in a sworn statement. Appellant denied yelling or making the statement in the specification. Live testimony trumps a sworn written statement. NOT SUSTAINED.

Agencies don’t often lose MSPB appeals because of a failure to prove specifications. Usually, agency losses can be attributed not to a lack of charge proof, but to a procedural screw-up: due process violation, poorly drafted charge, weak Douglas analysis. This case is an exception because most of the specifications failed completely. Of the original three charges each with up to seven specifications, the Board sustained only one specification and mitigated the removal to a five-day suspension. Ballard-Collins v. Army, SF-0752-13-0617-I-1 (2016)(NP).

As for the Board’s evidentiary findings, we’ll leave it up to you to decide whether you think the agency proved by a preponderance of the evidence (more likely than not) that the appellant was discourteous. The evidence is a classic he-said/she-said. For each specification considered on PFR, the appellant simply denied the charge, and a customer or co-worker supported the charge by sworn testimony or affidavit. In all but one specification, the Board decided to believe the appellant, not the agency witnesses.

As for us practitioners, there are a few basic takeaways worthy of note:

  1. The agency should not have relied on written statements as proof in the face of the appellant’s contrary live testimony. Almost every time, the Board will believe in-person sworn testimony over written affidavits.
  2. SPECIFICITY! We’ve taught for 15 years that charges and specifications need to be short and specific. Generalized charges hardly ever withstand Board review. Don’t use them.
  3. Charge what you can prove. If you can prove rude behavior, charge rude behavior. Don’t try to prove “discourtesy” by submitting evidence of “rudeness.” The Board is a nit-picky old bitty when it comes to the wording of a specification.

Some readers will, no doubt, conclude that the Board made a mistake in the weighing of the evidence. Our reality is that we cannot always be sure of how a judge will evaluate our attempt to prove the charges. However, there are strategic steps we can take to put our case in the best light possible. Understanding and using some of the basic principles of Board practice gives us a better chance of walking away with a winner at the end of an appeal. No guarantees, just an improvement in the odds. Wiley@FELTG.com

FELTG Once Again Leaps to Defend MSPB

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By William Wiley

And the truth shall set you free.

Yes, here at FELTG, we’ve been known, on occasion, to whack old MSPB upside the head when the Board issues some lame-brain decision that undermines the ability of agencies to run an effective government (or causes employee rights to be violated).  This week, however, we feel the need for speed, to point out when the Board has been unfairly attacked and its decisions mischaracterized by people who should know better.

Last week, at least a dozen different news organizations (and I use that term loosely), reported that MSPB was being berated for reversing a removal that was discussed in recent testimony before the House Committee on Oversight and Government Reform. According to those reports, the testimony on the Hill by Acting EPA Deputy Administrator Stanley Meiburg and by Assistant Inspector General  for Investigations Patrick Sullivan described the reversal by the Board of a removal of an EPA employee who:

  • Was a registered sex offender,
  • Was a convicted child molester who imitated a police officer, and
  • Who kept child pornography on his computer.

According to reports, after being told by Deputy Administrator Meiburg  that when EPA fired this employee, MSPB found the “basis for the removal was not sustained,” Chairman Chaffetz exclaimed,

“How do you lose that case? It’s just pretty stunning. How do we need to change the Merit Systems Protection Board? Because what’s not happening is we’re not protecting the American people and the taxpayers, and we’re not protecting the employees that have to sit by this freak of a pervert.”

Well, speaking of perversion, take a look at what the “real” facts are in this case. Yes, EPA fired this guy. And, yes, the Board reversed the removal.  It just sounds horrible that a child molesting, police officer imitating, registered sex offender cannot be fired from government because of the nasty US Merit Systems Protection Board. News reports like this make all of us civil servants (current and retired) look bad in the eyes of the public. No wonder that Congress is jumping up and down – as have a number of recent candidates for the Presidency and current agency heads  – about changes that should be made to gut the civil service system. There’s legislation afoot that would remove significantly large groups of civil servants from the protections of Title V, just so that the evil MSPB cannot get its hooks into a removal appeal and reinstate a non-deserving employee into the federal government.

So why did the Board order the reinstatement of a child molester to the civil service? Did it think that child molesting is not such a big deal? Did it say that the government is a good place for registered sex offenders to be? That’s sure what all the hullaballoo on Capitol Hill sounds like.

No, the Board ordered the removal to be set aside because the agency did not prove the charge: AWOL.

That’s right. This guy was not charged with child molesting, impersonating a police officer, or having child pornography on a government computer. He was charged with AWOL. And the Board set aside the AWOL charge because the agency failed to satisfy the requirements of a lead decision from 1981, a 35-year-old precedent (which, frankly, I don’t like, but the law is the law; see Pearson v. Navy, 8 MSPR 405 (1981)).

I leave it to others to conjure why two top agency officials would testify before Congress in a manner that resulted in the Committee Chairman concluding that MSPB was the bad guy in this scenario. Did they not tell Congress that the removal was reversed for a reason unrelated to this employee’s status as a sex offender? Did they not know that? Or, did they actually make that point, but the committee members accidentally heard something else? Did no one stop to think that the basis for the reversed removal was relevant?

Sometimes Board decisions deserve to be held up to the bright light of public ridicule. But this case is not one of them. Instead, in this situation perhaps that bright light needs to pointed somewhere else. Wiley@FELTG.com

Agency that Subjected Employee to Racially Motivated Hostile Work Environment Liable for $125,000 in Compensatory Damages

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By Deryn Sumner

I think that it is worthwhile for practitioners who represent employees and employers to be aware of cases awarding higher awards of compensatory damages.  Although $300,000 is the maximum award under the Civil Rights Act of 1991, most non-pecuniary damage awards fall in the range of $5,000 to $50,000 (something I’ll be talking about in more detail in next month’s newsletter).  Having examples of what it takes to actually get a six-figure award can be helpful for agency representatives talking to complainant’s counsel about what may be unrealistic settlement expectations and complainant’s counsel talking to their clients about…well, likely about their unrealistic settlement expectations.  Further, agency representatives should know about these higher awards so that where complainants do present substantial evidence of damages, the agency representative can competently provide a litigation risk assessment to the agency.

Let’s consider the recent Commission case of Vaughn C. v. Dept. of Air Force, EEOC No. 0120151396 (April 15, 2016). This decision addressed an agency’s award of $20,000 in non-pecuniary compensatory damages, issued after the Commission previously found in EEOC No. 0120123332 (September 10, 2014) that the complainant had been subjected to six months of egregious racial discrimination by co-workers, including use of the n-word, which caused him to resign. The Commission found the agency was liable for the harassment as the first-line supervisor failed to take prompt and effective action to address the harassment, and further found that the harassment resulted in making the complainant’s work environment so intolerable, a reasonable person would have felt compelled to resign.  After entering a finding of discrimination, the Commission remanded the complaint to the agency for investigation of the complainant’s entitlement to compensatory damages.

The agency instructed the complainant, through his attorney, to submit evidence in support of his claim for compensatory damages. The complainant submitted a statement saying that as a result of the harassment, he “had difficulty concentrating, a loss of appetite, high blood pressure, severe headaches and increased anxiety. He said his physical and emotional relationship with his wife was affected, and that he was frequently short-tempered with her, taking out his issues at work on her. In April 2011, he began to see a professional counselor to help him deal with the effects of the harassment at work.” The complainant also provided notes from his counselor which “indicated that Complainant’s mental status had changed. He worried about work often; felt anxious; developed insomnia; experienced a change in appetite and drinking resulting in a 15-20 pound weight gain; had difficulties with fatigue and focus; and had feelings of hopelessness. He also feared that the coworker would become physically violent towards him and his family, and gave family members pictures of the coworker and told them to make sure they did not allow her into the house and made sure all doors and windows were locked. He even devised a “safety plan” to make sure the coworker did not harm his family. The counselor also noted that the complainant would avoid going to the parking lot until after the coworker left work.

Based on this evidence, the agency found an award of $20,000 to be appropriate, and complainant appealed, seeking an increase of the award to $300,000.  After consideration of the evidence presented by the complainant, the Commission found an increase to $125,000 to be appropriate to compensate the complainant for the physical and emotional harm he suffered as a result of the agency’s actions. The Commission found that the complainant provided support for his claims and the award was consistent with prior Commission precedent.

Now, given my reading of other compensatory damages cases, the award does seem a bit high given that the complainant only provided a statement from himself and notes from his counselor.  I would have expected to see more medical documentation and statements from family members, friends, and perhaps a psychiatrist or psychologist in support of the award.  Keep in mind that when assessing claims for damages, we do not look at the underlying conduct, although the egregiousness of the conduct can sometimes be a factor, but rather the nature of the harm as a result of the conduct.  The Commission found $125,000 appropriate and given the egregious and hateful conduct at issue here, I have no doubt that the complainant suffered from substantial physical and emotional harm as a result of the workplace harassment.  Sumner@FELTG.com

BIG NEWS: Title 42 Employees Now Entitled to Appeal Removals to MSPB

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By William Wiley

OK, it’s BIG NEWS if you have any employees hired under the authority of Title 42 (rather than under Title 5), the authority that allows agencies to appoint special consultants without regard to any civil service laws. 42 USC 209(f). Since the cooling of the Earth, the Board and OPM have concluded that this language means that a Title 42 employee is without civil service protections and may be removed summarily without Board appeal rights.

Well, no more. As of Wednesday last week, if an agency fires a Title 42 employee, that employee gets to file an appeal with MSPB, just as would a regular Title 5 employee who has more than a year of service. Lal v. MSPB, Fed. Cir. 2015-3140 (May 11, 2016). And as we read 5 USC Chapter 75 (adverse action procedures) and 5 USC Chapter 43 (unacceptable performance procedures), agencies will be required to use those procedures to effectuate a Title 42 removal. OPM has room for a say as to the coverage of Chapter 43 for Title 42 into the future, but as their regulations are currently written, our best legal guess is that there’s coverage unless there’s a regulatory change.

The court’s reason in large part was straight out of Law School 1-A. Title 42 says that individuals may be “appointed” under Title 42 without regard to the civil service laws. A different statute gives agencies in another context when dealing with certain non-Title 42 employees the authority to “appoint[ ]…and remove[ ]… without regard to the provisions of title 5…” Reasoning that Congress saw a significance in the latter situation to include the authority “to remove” and that Congress did not specifically include the authority “to remove” in Title 42, Congress did not intend for Title 42 removal authority to be without regard for civil service protections.

Most Title 42 employees work in HHS, with a few scattered among other agencies (e.g., EPA). Therefore, most of the civil service is unaffected by this decision. However, for those readers who employ Title 42 employees, it is a new day. Whether it is a bright new day or a dark one, we leave that up to you to decide.

Here at FELTG, we teach supervisors how to hold Title 42 employees accountable for their performance and conduct just as we teach how to do that for Title 5 employees. We hope you’ll consider us if you now feel you would benefit from a little procedural education. Wiley@FELTG.com

Vehicle Misuse

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By Barbara Haga

Last newsletter, we looked at a case where the supervisor authorized an employee to use a government vehicle for something unofficial, and the supervisor was disciplined for the authorization.  This time we are looking at a case where the use was not authorized by any official within the agency.  Here the administrative judge (AJ) did not sustain the charge, but the Board reversed and then, the Federal Circuit overturned the Board’s decision.

It was a Really Good Reason

Here is the story behind the case.  The appellant, Kevin Kimm, was a GS-13 Criminal Investigator with ATF.  According to the Federal Circuit decision, he was a highly decorated investigator.  The events in question happened during August of 1992.

His wife was pregnant.  She had suffered previous miscarriages and was having contractions roughly two months before her due date.  During the first week of August, his wife’s doctor ordered her to avoid all stressful activity, but then revised the order on Tuesday of the following week ordering her to remain on bed rest at all times.  The Kimms were the parents of a three-year-old son.  Normally, the mother transported the son to day care but after the change in the doctor’s orders, she was not able to do this.

Kimm transported his son to and from day care three or four times during the first week that his wife was on bed rest.  Her parents arrived and took care of that thereafter.  The deviation in his route to go by the day care center was 2.6 miles each way.  If you do the math, making this deviation twice a day four times a week resulted in about 21 miles of extra driving.  Assuming he was driving a big SUV, we are talking maybe two gallons of gas used.  But, I digress.

It is not clear in the decision how the issue came up, but ATF learned about this.  In the ensuing investigation Kimm admitted that he had used the vehicle for this purpose.  He stated that he thought he was maximizing the use of his time in using his assigned government vehicle (GOV) during the period where he was working a lot of overtime and involved in a dangerous investigation.  He also noted that being in the vehicle meant that he could be available on the encrypted radio and making the detour in the GOV would allow him to get to work much faster since using a personal vehicle and returning home and then getting in the GOV would have resulted in a 40-minute delay because of heavy commuter traffic.

The ATF charged Kimm with “willful use of a GOV for other than official purposes” and suspended him for 30 days.

The Initial and Board Decisions 

The AJ decided that the suspension was not warranted, finding “… that the appellant had a good faith belief that he had the discretion to rectify a family emergency and simultaneously maximize the time that he was available to perform his agency functions, and that his belief was not in reckless disregard of the agency’s regulations.”  The AJ also found that the use was “minor personal use.”

The Board took a different perspective relying on the specificity of the agency’s directive regarding use of official vehicles.  In this case the directive was very specific to the use in connection with law enforcement activities.  The directive said that the use of the vehicle to carry an individual only if it was “… deemed essential to completion of the official mission.”  Those circumstances were further explained as follows:

Determining whether the transportation of a particular person is essential to the success of the mission demands the exercise of good judgment which will be guided by the following rules: 1) Transportation is not to be furnished to anyone unless the vehicle is being used on an official mission and the presence in the vehicle of each person transported is essential to the completion of the mission. 2) When foreseeable arrests and seizures are to be made, no private person will be transported in a Government vehicle unless there is an emergency and the help of such person is necessary for the protection of the special agent engaged in these activities.

The agency further explained in another document that family members and Bureau employees were not deemed essential.  The agency did provide that deviations could be authorized by a special agent in charge or higher official.  Kimm did not request such authorization.

The Board did not accept Kimm’s explanation that he was making the most efficient use of his and the agency’s time nor was the use judged to be minor personal use.  The Board reinstated the 30-day suspension.  (Kimm v. Treasury, 64 MSPR 198, 1994)

The Federal Circuit’s Take

The Federal Circuit’s decision records matters to which the appellant testified.  Kimm’s answers included the information about the deviation of a total of roughly 21 miles and his reasoning that saving 40 minutes each day while he was essentially on an around-the-clock investigation.  He also testified that there was room under the regulations for minor deviations.  “He testified that it was standard practice, for example, to make minor deviations to find a place to eat dinner while on a mission, or to alter one’s route to and from the office, if a death threat had been received. He also testified that the agency was lax in the enforcement of its GOV regulations, and cited a number of incidents that he believed had occurred to support this belief.”

The Federal Circuit found that the AJ’s determination that Kimm did not have actual knowledge that the agency would find the use as nonofficial was persuasive based on the appellant’s straightforward testimony and an improbable case put on by the agency.  The Federal Circuit ruled that the MSPB did not articulate a reason for finding otherwise.  The Federal Circuit also found that the agency policy left room for judgment by an employee about official use and determined that Kimm properly exercise that judgment.  Kimm v. Department of the Treasury, 61 F.3d 888 (Fed. Cir. 1995).

The Federal Circuit did not find reckless disregard in this case nor was it found in the Felton case reviewed last month.  There was unofficial use of a vehicle in both cases, but the per se violations did not meet the requirements for imposing the statutory penalty contained in 31 USC 1349.  Word to the wise! [Editor’s note: Another word to the wise. Never, ever suspend for 30 days under 31 USC 1349. It does the agency no good, locks the management advocate into satisfying the statutory definition of GOV misuse, and requires that the agency defend its action before MSPB. As we have taught for over a decade in out FELTG seminars, the best practice in a situation like this is to charge “Unauthorized Use of Government Property” or the generic “Violation of Agency Procedures” and suspend for 14 days or fewer to avoid MSPB. Had that been done here, Treasury would have won this case.] Haga@FELTG.com

Sanctions: When a Party Generally Just Fails to Follow the Administrative Judge’s Orders

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By Deryn Sumner

So far in this series on sanctions in federal sector EEO complaints, we’ve talked about the EEOC’s authority to issue sanctions against either party, and three different situations that can give rise to sanctions: agencies failing to timely complete investigations, agencies failing to complete thorough and appropriate investigations, and either party failing to cooperate during discovery.  This month, let’s talk about when sanctions are appropriate for a party’s general failure to comply with an administrative judge’s orders in a case and look at some recent cases where administrative judges issued such sanctions.

In Gilbert B. v. USPS, EEOC No. 0720150008 (March 18, 2016), the Commission affirmed an administrative judge’s issuance of sanctions where the agency representative failed to properly serve the complainant with a request to continue a settlement conference.  The choice of service was an issue because the agency requested to reschedule the settlement conference just two days prior and served the request by mail to the complainant and his attorney who lived in Guam.  The administrative judge also issued sanctions against the agency for failing to cooperate in settlement discussions in good faith. The agency argued, after the fact, that it had a policy of not voluntarily participating in a settlement conference with an administrative judge who also served as the presiding judge. The Commission agreed that the sanction, attorney’s fees the complainant incurred by not being notified of the change in the settlement conference date and time, to be appropriate.

In Eyrn O. v. Dept. of Veterans Affairs, EEOC No. 0120131752 (January 8, 2016), the Commission affirmed the administrative judge’s sanction against the complainant by dismissing her hearing request where the complainant failed to show good cause for her failure to file a prehearing submission or to attend the prehearing conference.  The complainant did not dispute that she had received notice of the deadlines, but did not notify the parties that she would not appear, nor did she request an extension before the deadline.

And finally in Marquitta B. v. USPS, EEOC No. 0120140518 (December 17, 2015), in a case where I’m just glad I wasn’t involved, the Commission affirmed the administrative judge’s award of sanctions against the complainant because the decision was “supported by an extensively documented record of contumacious conduct on the part of Complainant and her counsel. That conduct included: failure to respond to an instruction to file a motion to amend her complaint; attempting to utilize an unauthorized court reporter to transcribe a pre-hearing teleconference; repetitive, excessive, and overbroad discovery requests; abusive behavior by counsel; resubmission of a motion that had already been denied in a way that expressed contempt for the AJ’s authority; and most important, failure to appear at the hearing itself. Under these circumstances, we find no abuse of discretion on the part of the AJ.”  The Commission affirmed the sanction of dismissal of the hearing request and remand of the case for issuance of a FAD.

Remember, the EEOC provides broad discretion to its administrative judges in conducting hearings.  As MD-110 Chapter 7 states, “The Commission has the authority to issue sanctions in the administrative hearing process because it was granted, through statute, the power to issue such rules and regulations that it deems necessary to enforce the prohibition on employment discrimination. See Waller v. Dep’t. of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), request for reconsideration denied, EEOC Request No. 0520070689 (Feb. 26, 2009). In this respect, the Commission has determined “that delegating to its Administrative Judges the authority to issue sanctions against agencies, and complainants, is necessary and is an appropriate remedy which effectuates the policies of the Commission. Id.” Ignore the orders of the administrative judge at your own peril.  Sumner@FELTG.com