Social Psychology at Work

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By William Wiley

Think quickly. Which of the following would you prefer to buy?

  1. Hamburger that is 80% lean
  2. Hamburger that is 20% fat

Most humans, and we continue to believe that the majority of the FELTG readers are human despite occasional evidence contra, will pick the 80% lean. Of course, now that you’ve had a minute to think about it, you’ve done the math, and you know that these two descriptions are simply different ways to describe the same chunk of chuck. Yet, study after study shows that we pick the description that favors the lean. An often-used term to describe this behavior is “framing attribution” or more specifically “negative dominance,” see Levin and Gaeth (1988), Journal of Consumer Research. We prefer the characterization that favors the positive over a characterization that favors the negative.

Want another one? Assume you are an American interested in holding federal employees accountable for their performance and conduct. Which of these two characterizations suggests something positive?

  1. MSPB affirms agency removal decisions 75-80% of the time.
  2. MSPB rejects agency removal decisions 20-25% of the time.

Once more, these two phrases describe the same success rate. However, the former sounds better, especially if you are defending the Board against claims that it is not supporting management’s disciplinary actions enough. And in fact, that’s exactly how the Board’s Chairman lately has been characterizing MSPB’s review of agency removal decisions, emphasizing the “positive dominance,” just like social psychology studies would suggest be done.

Unfortunately, that defensive characterization of the Board’s affirmance rate of agency removal decisions detracts us from the HUGE elephant in the room: After nearly 40 years of agencies trying to do exactly what the Board says should be done, MSPB still rejects agency removal decisions 20-25% of the time.

Just think if we had a similar success rate for airline pilots landing an airplane safely. Or, baseball pitchers being able to get the ball to home plate. Or, what if for every three times your wife told you she loved you, a fourth time she told you that you were the worst thing that ever happened to her? Each of these situations is serious and in need of some very prompt and focused attention (and perhaps some emergency marriage counseling). Yet government agencies just keep on keeping on, accepting a “survival” rate that would be cringe-worthy in other situations. You would think that someone would try to figure out what’s going on, why all agency removals are not affirmed on appeal as they should be.

And of course, here at FELTG, we dare to go where no one with good sense will go. So here are the main possibilities that are resulting in 20-25% of agency removal actions being rejected:

  1. Agency attorneys and human resources specialists are ignorant, unable to properly construct a removal action.
  2. Agency managers are evil, bent on firing people who should not be fired.
  3. MSPB is overstepping its role, reversing agency decisions that should not be reversed.

Seriously. Can there be any other reasons? Assuming not, let’s think about each of these:

  1. Ignorant is not the same as stupid. Stupid is the thief killed by a vending machine that falls on him when he is trying to steal a soda from it. Ignorant is just not knowing something, as in “I am ignorant in the ways of the Eskimos.” In all humility, for over 15 years we here at FELTG have been trying to do something about any ignorance in the field of federal employment law. However, we can’t make folks come to the seminars and webinars. If Reason One is the cause of the high rejection rate, we are doing what we can, but we’re just one little training company.
  2. I’ll admit a bias here. In my life-long career in this business, I’ve run into some managers I did not like, who were a bit arrogant or self-centered, perhaps even kinda stupid (see above). However, I can count on two hands out of the thousands of federal supervisors I’ve met, worked with, or reviewed cases of, how many I think intentionally mistreated an employee because of civil rights status (sex, race, age, etc.), whistleblowing, union activity, or veterans’ status. However, if your experience is different, if you’ve run into a bunch of evil supervisors in your career, keep in mind how many supervisors are involved in the typical removal action, how many removal actions are taken each year, and that effectively 20-25% of the federal supervisory corps would have to be evil to explain the Board’s rejection rate. That’s a LOT of evil for a system based on merit.
  3. Which brings us to the Board. If we have educated attorneys and HR specialists assisting honest supervisors who are just trying to hold their employees accountable, then the only option left requires us to evaluate what MSPB is contributing to the dismissal rejection rate of 20-25%. And if you are a loyal reader of our newsletter, you are familiar with our concern that the “merit systems” protection board has become the “federal employee” protection board, supplanting the judgment and decision-making always intended to be left to managers accountable for the performance of their agency.

Let me give you an example of this last possibility. This is a judge’s decision, not a Board member opinion, so it’s not yet the final voice of the Board. But it is well-based in Board case law, so it still serves to show what can happen when an oversight adjudicator makes management decisions.

You know this lady. Feels overworked compared to her colleagues, complains about how the place is being run, ticks off a lot of her coworkers, then stops coming to work when people are not nice. For a year. Finally gets fired for medical inability to perform based on her claim that she cannot work anymore due to stress in the office. Files for workers’ comp: nothing. Files with OSC: nothing. Finally, files with MSPB. After a hearing, the judge rejected the removal and put her back to work after four years, based on the following:

  • One of her complaints had to do with a perceived safety violation. Therefore, she is a whistleblower.
  • The complaint occurred 1½ years prior to the decision to remove. Therefore, automatically a contributing factor in the removal.
  • When deciding to remove her because of her medical limitations, the deciding official gave no consideration to the fact that her medical condition and resulting one-year absence were caused by a “hostile environment”:
    • Inappropriate music in the workplace.
    • Her coworkers got longer breaks.
    • She had to work harder than some of her colleagues.
    • One day a coworker bumped into her.
    • Another day, a coworker said a vulgar word to her.
  • Although there were comparator employees who had been fired for medical reasons, none had medical problems caused by a similar hostile environment.

Social psychology is a fascinating science. Those who know how to use its secrets (some of which we teach in the FELTG negotiations seminars) can influence behavior and focus attention to obtain an advantage. But rather than focusing on the paltry number of removal actions affirmed by the Board, somebody somewhere should be looking at those that are rejected, and doing something about it. America could use an advantage.  Wiley@FELTG.com

I’ve Never Seen a Decision Like This One

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By William Wiley

I’ve read them all. Yep, starting in 1979, I began to read Board decisions, and never stopped. Today, I lay claim to having read all of MSPB’s precedential decisions, having missed a few of those nasty little non-precedential decisions when they were first being issued in 2010. Otherwise, every one of them has travelled through my brain cells at least for a minute or two; some of them for hours. And if I ever saw the Board uphold an adverse action based on what you are about to read, I sure don’t remember it.

But first a little warm up hypothetical exercise before I push you down the old slippery slope. Pretend you are a second level supervisor. What would you do if one of your subordinate supervisors (S1) admitted to you that she “trusted fans of college basketball more than anyone else”? Would that cause you to take some action against S1? What if she told you that she “trusted Christians more than anyone else”? Has she crossed a line now, bringing religion into her thought processes? What if S1 told you she “trusted Eskimos more than any other race”? What if instead of Eskimos, her standard for trust was whether someone was African-American? Or, white? We’re certainly moving into some sensitive areas here. Does the same principle apply all the way down this slope? Or, is there a line in here – a legal line – that has been crossed and that requires you to do something?

Keep in mind, these hypotheticals involve only S1’s thoughts and her expression of those thoughts to you. As a federal manager, should you be taking action based on someone’s beliefs, even though there is no corresponding action based on those beliefs? Should a federal employee be punished for her thoughts?

Well, according to MSPB, the answer to this one is “yes.” In a recent decision, the Board upheld a two-grade demotion of a second-level supervisor out of supervision because, among other things, she did not take a strong enough action when one of her subordinate supervisors admitted to having one of these hypothetical biases (you get to guess which one). Spicer v. SSA, DC-0752-14-0996-I-1 (2016)(NP).

And that, my friends, makes this decision the first of its kind. At no other time in history has the Board blessed discipline based on an individual’s thoughts. Actions, yes. But an expression of thought in and of itself, I know of none. In affirming this specification, the Board stated that “it is completely unacceptable for Federal supervisors to harbor such sentiments.” “Harboring sentiments” is just another way of saying “believing” something. So is the test of what makes for an acceptable Federal supervisor what they believe, or more appropriately, what they do?

If the test is a person’s beliefs, how does one control what one believes? If my experience has shown me that tall people are more fun at parties, how do I change that belief? Can I will myself not to believe something experience has taught me? A psychologist will tell a person who has hallucinations that the road to normality is based on not acting on those hallucinations, that you recognize that they are not real, only manifestations of your mind, and act accordingly. We all have biases and those biases are not necessarily the same as those held by others. I may be biased towards people with whom I share a religious belief, country of birth (USA! USA! USA!), or favorite basketball team fan base. A civilized society recognizes that different people have different biases, and accepts those biases AS LONG AS individuals don’t act on those biases to the detriment of others.

By comparison, in an uncivilized society, those with the power tend to kill those with different beliefs. Go read a history book or watch the evening news if you need affirmation of this comparative concept.

Which brings us back to the demoted supervisor in this case. When S1 admitted a particular bias relative to trust, the appellant acknowledged to S1 that she might have a bias, but warned her not to act on that bias in the workplace. Not enough of a response, according to MSPB and the employing agency. Specifically, the Board ruled that the appellant “should have known that verbal warnings were wholly ineffective under the circumstances.” And because she apparently did not know this was, in part, one of the reasons she was demoted out of supervision.

Wow, “wholly ineffective.” Even worse than just plain old “ineffective.” Unfortunately, the Board’s decision doesn’t lead us to exactly what would have been an “effective” response on the part of the appellant when informed by S1 of her trustworthiness bias. If counseling (a verbal warning) isn’t enough, what is? MSPB’s decision notes that the appellant didn’t document S1’s disclosure. Perhaps a Letter of Reprimand: “By this letter I am reprimanding you because you expressed a bias in favor of [fill in the blank].” Written documentation, more than an oral warning … maybe that’s what the Board would accept. But is it really an act of misconduct to believe something that is an unpopular belief, a belief that it would be illegal to act on, but is still just a belief? Somewhere I got the idea in some civics class along the way that in our great country, we don’t punish people for their beliefs like governments do in other countries. Maybe the Board members had a different civics instructor.

In support of its decision to uphold discipline in this situation, the Board cites to Curry v. Navy, 13 MSPR 327 (1982). Board Practice Strategy: Always be suspect of authority relied on by MSPB if it goes back three and a half decades with no intervening case citations. Somebody was really digging to justify this disciplined-for-thoughts outcome. And when your suspicion leads you to read Curry, you’ll find that in that case, Supervisor Curry made sexist remarks about women to a female apprentice in a “coercive and disparaging” manner, to my read a significantly different situation than this unique case. Also, you’ll find that even though the parenthetical statement contained in Spicer summarizing the Curry holding says that Supervisor Curry’s statements were found to be “discriminatory,” the Curry decision itself reverses the judge’s discrimination finding as “clearly erroneous.” So what we are left with for bias-discipline authority is a sole contemporary citation in Spicer to a prior Board decision from 35 years ago that involved a supervisor making degrading remarks about women to a young non-supervisory woman, that is incorrectly characterized as discriminatory.

And the Board calls this Spicer decision “non- precedential.”

There are acts of misconduct in the Spicer case separate from the punishment-for-thoughts aspect discussed above that likely would support the demotion on appeal. On a personal level, I don’t like the thoughts expressed by S1. However, my personal liking or disliking someone else’s biases, and the fact that there was other disciplinable misconduct in this case, does not detract from the fact that the Board has now opened the gates for the disciplining of individuals based on their thoughts.

Good thing I’m not within the Board’s authority to discipline me any more. Because if they knew what I’m thinking …

OK, let’s see if I can end on an uplifting note. Here are a couple of teachable takeaways from this case that might be of use to you management officials out there:

  • Sometimes we get a question in a class as to how far back can an agency go when disciplining for misconduct. Some of the critical supervisory conduct in this case preceded the proposed demotion by five years. That should bring you some comfort if you’re dealing with a situation involving old misconduct.
  • The specifications in this case could easily have been the basis for initiating a 432-PIP, going down the other legal path for holding employees accountable. However, 432 removals are based on what happens in the future (during the PIP). This agency clearly wanted to 752-discipline the employee for things that had happened in the past without giving her a chance to show whether she could improve her performance. In a case like this, an agency has a choice of roads to take, the selection of which depends on the outcome desired.
  • The charge in this case appears to have been “Negligent Performance of Duties.” In its decision, the Board reminds us of the elements of this performance-based charge: Failure to exercise the degree of care required under the particular circumstances, which a person of ordinary prudence in the same situation and with equal experience would not omit. Citing to Velez v. DHS, 101 MSPR 650 (2006).

And on that note of clarity, we rest our case. Wiley@FELTG.com

Well, Maybe She DOES Sue Everyone

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By William Wiley

I get so tired of criticizing decisions issued by EEOC.

“So, Bill, why don’t you stop? They have an important job to do over there, protecting federal employees from civil rights discrimination.”

Yes, they do have an important job, one that all of us support and respect. However, the way they sometimes go about doing their job doesn’t always deserve much respect, thereby leading to my writing articles like this one when I should be taking my afternoon nap. Here are the details of another Commission finding of discrimination that I cannot align with the law or with common sense:

2002:  Complainant resigns from USPS as part of the settlement of a discrimination complaint she has filed in which she alleges her supervisor violated her civil rights. No evidence that the settlement promised the appellant a clean record.

2002-2008:  Complainant has several temporary jobs, some with government agencies, but fails to secure permanent employment.

2008:  SIX YEARS after her resignation, she begins to suspect that the reason she is not getting offers of permanent employment may be because her previous supervisor, the one she accused of violating her civil rights, might be giving her a negative reference. Therefore, the complainant hires a company to contact her previous supervisor to check her references. The supervisor tells the caller that, “I really can’t recommend her, she sues everyone;” “No, she would not be allowed to come back to the Post Office;” and “She was let go.”

2009:  Complainant falsifies her resume by deleting from her employment history the position from which she resigned in 2002. Subsequently, she is hired by the Social Security Administration into a permanent position.

Based on these facts, EEOC found that the supervisor’s statement was in retaliation for the complainant previously filing a discrimination complaint, and awarded the complaint $11,150 – $10,000 of which was due to the emotional distress complainant suffered when she found out what her previous supervisor said about her. To its credit, EEOC denied the complaint’s request for attorney fees for the time she spent representing herself because the complainant is not an attorney. Complainant v. USPS, EEOC No. 0120132417 (July 2, 2015).

Oh, the problems with this decision:

Retaliation – Unfortunately, EEOC’s current regulations don’t define retaliation: “No person shall be subject to retaliation for opposing any practice made unlawful by title VII of the Civil Rights Act …” 29 CFR 1614.101(b). However, EEOC’s previous regulations relative to retaliation are a bit more helpful: “It is unlawful to restrain, interfere, coerce or discriminate against complainants [or others] because of involvement with a discrimination charge.” That’s in line with a common online definition. You “retaliate” when you harm someone because they have harmed you.

And the because aspect is what’s missing in the analysis in this case. Six years after the complainant quit her employment with the agency, the supervisor said he could not recommend her, that she was let go. However, nowhere in the analysis does the Commission show that the reason (the “because of”) the supervisor said these thing is because the complainant filed a discrimination complaint six years previously. Maybe he said it because the complainant happened to be a bad employee. The complainant has the burden of proof in a discrimination case. Here, the complainant has proven two things: that the supervisor said something bad about her and that she filed a discrimination complaint six years previously. She has NOT proven a connection between the two. She may have established a suggestion for the reason, but not anything close to proving it by a preponderance of the evidence.

Had EEOC done a McDonnell Douglas analysis in this case (prima facie case, articulated a legitimate nondiscriminatory reason, pretext assessment), its rationale would be more compelling. However, I find nothing in either the judge’s or the OFO’s decision that says that the Commission evaluated any proffered legitimate non-discriminatory reason for the supervisor’s statements put forward by the agency. It seems to be concluding that there is per se retaliation when a supervisor says something bad about a discrimination-complaining prior-employee who quit six years previously. There are good employees who file discrimination complaints and there are bad employees who file discrimination complaints.  The fact that a bad employee previously filed a discrimination complaint does not make the employee a good employee. If this supervisor reported that he would not rehire her BECAUSE she filed the complaint, then that’s illegal retaliation. However, if he reported that he would not rehire her BECAUSE she was a bad employee, then that should be found to be legal.

“She sues everyone” – Well, maybe she does. Maybe there were lawsuits this individual filed against people who work at the agency, lawsuits that were unrelated to any claims of civil rights discrimination. If so, we certainly don’t know that from the Commission’s decision. EEOC brags that it is an investigative agency doing law enforcement work. Shouldn’t we expect an investigator to ascertain whether the statement that “she sues everyone” is factually true? And if so, whether those law suits were related to claims of civil rights discrimination? If this complainant did sue a lot of people at the agency for non-discrimination reasons, the Commission should not have found discriminatory retaliation under 29 CFR 1614.101(b). Unfortunately, we don’t know the facts from the Commission’s investigation into the claims made in this case.

FOIA – As the judge’s decisions at EEOC are not published, good old FELTG had to file a Freedom of Information Act (FOIA) request to get a copy. For many years, filing a FOIA request for a judge’s decision at EEOC was a waste of time because the Commission would routinely deny the request in full, relying on the 5 USC § 552(b)(7)(C) FOIA exception that allows an agency to withhold information if producing the information would “constitute an unwarranted invasion of personal privacy.” Well, now that the Commission does not name the complainants in its decisions, the reliance on privacy-invasion no longer has any merit. If you don’t know the individual, there’s no privacy right to protect; i.e., anonymous individuals need no privacy.

At least that’s what one would assume if one were applying common sense. So far, in response to our initial FOIA request, we have received a judge’s decision that is at least 50% redacted. I expected redaction of all the names and any information that could lead to the identification of anyone personally (address, phone number, title … that sort of thing). But to redact all things relevant to the unnamed complaint is far beyond the law. My appeal is pending, so stay tuned. Heck, we have nothing better to do here at FELTG than tilt at the windmill of a FOIA denial.

At least we don’t sue everybody. Wiley@FELTG.com

What! No Tooth Fairy, Either?

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By William Wiley

Innocence. I seem to remember it vaguely. Many of us practiced it with our kids when they were young, telling them fun things like that if they were good a big fat guy in a red suit was going to come down the chimney and leave them presents once a year. Or, that an Easter Bunny had hidden colorful eggs around the house. Or, that if they put a recently-dislodged tooth under their pillow, a fairy would fly into their room when they were asleep and leave a quarter (although I guess now he has to leave a $20 to keep up with the times). Yes, sometimes we play little fantasy games with ourselves and with others, games that have good thoughts, but are not necessarily based on the hard facts of reality.

Although the more obvious fantasy games are usually played with children, we also play fantasy games with ourselves as adults. For example, a number of practitioners hang on every decision from EEOC as if they are each some sort of independent ex cathedra declaration of civil service law, bringing wisdom and justice to an otherwise discriminatory federal workplace. Well, if you’re in this group, start reading more EEOC decisions. Too many of them, like the following, contain a questionable evaluation of the evidence, Elbert H. v. DVA, EEOC No. 0120140032 (2015).

Relevant dates in order:

  1. February (estimate) 2009 – Complainant is hired as a probationary employee.
  2. June 30, 2009 – Supervisor rates complainant’s performance for the period from hiring until the rating is issued as Satisfactory.
  3. Beginning in the “summer” of 2009, supervisor begins to note deficiencies in the employee’s performance:
  4. July 19, 2009 – Employee complains to supervisor about a “hostile environment” caused by a coworker. Interestingly, nothing in the Commission’s decision references whether the employee claimed that the hostility was based on a protected civil rights category, or whether some coworker just didn’t like him and was therefore hostile.
    • Only hostility complaints based on race/sex/age/etc. are protected activity for the purpose of the filing of a reprisal discrimination complaint.
    • One would think that this would be an important evidentiary finding in EEOC’s decision.
  5. January 4, 2010 – Supervisor terminated employee’s appointment during probation for poor performance. Specifically, the supervisor reported that the employee:
    • Failed to create purchase orders
    • Failed to establish purchase orders prior to services being rendered
    • Failed to provide adequate customer support to the medical center
    • Failed to support the transitioning of Network circuits
    • Ignored an environmental alarm
    • Failed to follow orders regarding work transfer
    • Failed to notify chain of command of system issues
  6. Employee subsequently filed an EEO complaint claiming reprisal for the July 19, 2009 grumble. The EEOC judge found reprisal and awarded the employee:
    • Reinstatement
    • Back pay (est. $135,000)
    • Non-pecuniary damages of $23,750 (it appears that the employee did not request damages, but the judge awarded them anyway)
    • Attorney fees and expenses of $44,618.55.
  7. Amazingly, the employee/complainant appealed the judge’s decision to EEOC. The rationale for the appeal is not given in EEOC’s final decision. However, that decision affirmed the judge’s findings and award.

For those of you clinging to the belief that EEOC’s decisions are well-founded and fair, check out how the judge and the Commission rationalized that the supervisor reprised against the employee:

From the decision: “While the supervisor testified at the hearing that Complainant’s performance problems began in the summer of 2009, the supervisor had rated Complainant as ‘fully successful’ or better on June 30, 2009, and the ‘performance appraisal reflects no references to any of the alleged multiple performance problems that the supervisor now asserts as the basis for the Complainant’s termination.’”

  • FELTG Analysis: Well OF COURSE the appraisal given on June 30 was satisfactory. The supervisor testified that the employee’s problems didn’t start until the “summer. According to The Google, summer begins in the northern hemisphere (the relevant hemisphere herewith) on June 21. The successful performance rating given the employee for the first six months of 2009 is irrelevant to the employee’s unsuccessful performance the last six months.

From the decision: “The AJ further noted that Complainant had received a Special Act Award from the Deputy Director during the period his performance was supposedly problematic.”

  • FELTG Analysis: A Special Act award is based on an “act or service in the public interest in connection with or related to official employment.” 5 CFR 451.104(a)(2). It is defined as separate from an award based on an employee’s performance, 5 CFR 415.104(a)(3). Special Act awards are given for beneficial suggestions, acts of heroism, a reduction in paperwork, and other non-performance accomplishments that contribute to an efficient government. 5 CFR 41551.104(a). I once received a Special Act award because I helped a disabled employee down a stairway when there was a (minor) fire in the office. It is irrational to conclude that an employee who received a Special Act award necessarily is a successful performer.

From the decision: The AJ concluded that the supervisor’s statements regarding the employee’s failure to report to work during a snowstorm were false (“a sham,” “outright prevarication”).

  • FELTG Analysis: Yielding to the judge’s conclusion that the supervisor was “prevaricating” about the snow storm incident, what about the other five or six incidents of unacceptable performance on which the probationary termination was based? Is the Commission drawing the conclusion that since the supervisor’s testimony about the snow storm incident is not to be believed, the other incidents also are not to be believed? If EEOC is going this way, that’s quite a stretch, and not one that they’ve specifically laid out as a conclusion. The decision is silent as to the other bases for the removal, without explanation.

Evidence is often in the eye of the beholder. But a rational explanation (or lack thereof) is something we all can appreciate. Without one, we all have trouble believing in EEOC’s decisions, even though without exception, we all wish that they were always rational and correct. Sadly, they are not.

And for those of you who are still believers, there’s no such thing as a tooth fairy, either. So get rid of those left over teeth and warn your managers that you’re going to lose some cases that go to EEOC, whether you deserve to, or not. Wiley@FELTG.com

 

Exactly What is “Priority Consideration”?

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By William Wiley

It’s a new year. We get new questions. Here’s one from a concerned reader that involves a staffing office that may be unfamiliar with a long-standing legal concept:

I recently conducted a labor arbitration case that resulted from a grievance.  The remedy that was negotiated for settlement included a “priority consideration” for the individual, noting that the individual had to be qualified and a vacant position open.  The “priority consideration” stated that “the appellant would be considered first by the selecting official before any of the other candidates, who applied competitively for that vacancy announcement, will be considered.  The Appellant will then be offered the position unless he is no otherwise qualified for the position at that time.”  I have been told by our Civilian Personnel Office that, while they recognize “priority consideration” they do not recognize the authority of the arbitrator to approve the use of priority consideration in the way I have structured it in the facts of this case. They believe that this “priority consideration” violates the merit system principles.   The CBA for the particular union in the grievance uses the “priority consideration” but only in those cases where the government, during a competitive promotion process, has errored against an individual.  The typical case is where the individual has not been referred and should have been.  In that case and only that case, the Civilian Personnel Office recognizes priority consideration and gives the wronged individual a referral in the next vacancy for which he/she is qualified but does not guarantee the job.  I have performed some research under FLRA case law and have not found any cases on point but have found cases where priority consideration was a remedy.  Would greatly value your opinion on this matter. Thank you.

And our occasionally-elucidating response:

Always nice to hear from you. The answer is not in FLRA law, but in MSPB law. “Priority consideration” is a term of art that “generally means that an employee will receive bona fide consideration by the selecting official before any other candidate is referred for consideration, that he will not be considered in competition with other candidates, and that he will not be compared with them,” Lou v. Heckler, 38 FEP Cases 835, 837 n.3 (D.C. Cir. 1985).

Even when there is some question as to how a settlement is to be implemented, the obligation of the agency is to implement it in line with legal authority. Agencies have been offering priority consideration for over 30 years, so we know you have the authority to do it. The only limitation would be that you have to offer it consistent with any legal constraints; e.g., perhaps there is a disabled employee who has the legally superior claim to the vacancy, and has to be offered it as a reasonable accommodation.

Your civilian personnel office is mistaken in where the authority comes from to award priority consideration. It is not the arbitrator who is exercising the authority, but the agency itself through the operation of the settlement it agreed to. We provide training to personnel specialists (OPM does not provide mandatory training, sadly). We’d be delighted to have some of them in our upcoming classes; perhaps save you and Rod further difficulties.

As a footnote, be sure to have your selecting official document his bona fide reasons for not selecting the grievant, if that is the result. You’re going to have to defend that the appropriate consideration was provided if there’s a non-selection.

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

Perhaps MSPB Needs New Glasses

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By William Wiley

Why new glasses? Because the Board seems to have lost its focus. Let me tell you what I mean.

Way back in 1977, when yours-truly was but a babe in the world of “civil service personnel,” Congress was thinking up legislation that was destined to become The Civil Service Reform Act of 1978. In those primordial discussions, Congress began to develop the concept of a new federal agency, independent and given the responsibility to oversee all the major discipline in government (more or less). I remember clearly a couple of Senators referring to this still-conceptual embryonic oversight entity as the “Merit Board.” Nice tight name, I thought. “MB” works well as the acronym (certainly better than the unfortunately-named “Sam Houston Institute of Technology”). So we called it the Merit Board, at least for a few weeks.

Then, without a lot of fanfare, when the draft legislation began to take shape, the name appeared not as the Merit Board, but as the “Merit Systems Protection Board.” A couple of years later when former Civil Service Commissioner Scotty Campbell spoke at one of our earliest conferences, he related that the change was made to emphasize that this new agency had been created to protect the system itself, not to ensure some sort of individualized “merit” throughout government. The concept was that no single small agency could be responsible for every adverse personnel action within the two-million-plus government workforce. Rather, the most that could be hoped for was that the new MSPB would make sure that the merit-based systems were in place for use by the managers who run the various government agencies, and that the systems would provide the protection to the employees within those systems.

That’s why its named the “Merit Systems Protection Board,” not the “Federal Employee Protection Board.” If it were intended to be the FEPB, rather than the MSPB, it would be responsible for protecting the right of individual employees to be treated based on its definition of merit. In comparison, as the MSPB, it is designed to be responsible for protecting the system in which agency managers deal with agency employees, to make sure that those SYSTEMS are grounded in merit.

I know, I know. Sounds a lot like an angels-on-the-head-of-a-pin rumination, doesn’t it. Well, let me show you the distinction in practice.

Hypothetical Scenario: Agency fires employee because of theft.

MSPB World:  MSPB decides whether Agency provided Employee the procedures required by the merit system. Did Agency give Employee clear notice of why his removal was proposed? Check. Did Agency allow Employee to defend himself? Check. Did Agency provide Employee the reasons for the removal, all based on the proposal? Check and done. The focus has been on the application of the system by Agency.

FEPB World:  FEPB decides whether it can protect the employee who is in a merit system from being fired. Did Employee steal from Agency? Did Employee get due process? Did Agency pick the best penalty? The focus has been on the protection of Employee from removal.

Non-hypothetical Scenario:  A supervisory employee responsible for keeping terrorists out of our airplanes lies in a report. Twice. The judge even found part of her defense of herself to be an unbelievable “convoluted” rationale. Who would want a convoluted liar to be responsible for life-and-death decisions? Agency fires her.

MSPB World:  She got notice, she defended herself, the agency made a decision based on all the facts. Done.

FEPB World:  Ah, ha! I, the FEPB, conclude Agency did not prove all charges. I, the FEPB, conclude that she’s really not that bad of an employee because she lied in only a single report, has decent performance ratings, there’s tension in the workplace, and she had no prior discipline. I, the FEPB, conclude that removal is beyond reasonable and that “her misconduct would not preclude her from providing efficient service in a non-supervisory” lower-graded position, plus a 30-day suspension should replace the removal. Brown v. DHS, SF-0752-14-0816-I-1 (2016) (NP).

Note that in the FEPB World, not only did that Board declare that removal was unreasonable, it also concluded that the agency needed someone in a lower-graded position, and even though it might need someone in a lower-graded position, it could spare that individual for a month while suspended. Sure feels a lot more like managing an agency than simply protecting a merit system, doesn’t it?

The scenario in which this loss of focus has become most publicized imvolves the recent reversals of adverse actions taken by DVA against three of its Senior Executives. Instead of MSPB ensuring that the systems that were in place were complied with, it interjected itself into those systems and made decisions that were always intended to be made by the line managers who run DVA. For example, as we noted recently last month, in one of those reversals the Board’s judge said, “Deputy Secretary Gibson … stated [a co-worker’s conduct] that would go to lacking sound judgment is different. I do not see it as different,” and “Deputy Secretary Gibson testified that he had no intent to discipline [appellant’s co-worker] because [the co-worker] did not receive [$274,019.12 in] relocation benefits. I do not find that these are meaningful distinctions. First, although the she did not relocate, [the co-worker] had a sizable pay raise to lose [of $18,000 per annum].” Graves v. DVA, CH-0707-16-0180-J-1 (January 29, 2016). This is a perfect example of the Board’s case law steering its judge toward the defense of the employee rather than the defense of the system, substituting its judgment for that of the line manager responsible for the operation of the agency.

Think of it this way. You’re ready to buy a new car. I go car shopping with you. We get to the point of considering two cars: a Ford and a Chevrolet. You conclude that the Chevrolet is the better car. I conclude that the Ford is the better car. Given that you are the one buying the car, responsible for driving it, and accountable should anything go wrong with it, who should make the buying decision: you or me? That’s right, you should, and so should it be the agency making judgment-call decisions like this within a merit-based system.

MSPB Chairman Grundmann was called upon earlier this month by several members of the US Senate to explain how the Board could possibly have not affirmed the demotions/removal in these DVA cases. In response, the Board stated that it was just following the law. Well, that’s just nonsense.  The Terrible Trilogy precedent (recent case law that calls for setting aside a penalty if anyone else in the agency who did anything remotely similar was not removed) exists solely as case law developed by the Board under Chairman Grundmann in 2010, and is not required by statute or regulation.  However wrong in its own right, the Board’s disparate penalty analysis was obviously designed for use in cases governed by Douglas, i.e., cases in which penalties can be mitigated.  That is the whole point of the Terrible Trilogy precedent — to justify mitigating a removal penalty to something less even though removal otherwise would be justified.  The Board was in no way required to apply this precedent to cases in which penalty mitigation was prohibited by law, as It is in the DVA/SES adverse actions.

MSPB should not be faulted for following the law, as it said in its response to the Senate inquiry. However, it certainly should be faulted for developing that law in the first place, for turning away from being the protector of our merit systems to being the protector of employees from what it believes IN ITS JUDGMENT to be unwarranted discipline.

By the way, since you’ve decided on the Chevrolet, may I suggest you consider the 2016 Corvette. That baby is wicked-cool and handles as if it was on rails. Of course, it’s your decision, not mine. Wiley@FELTG.com

Must One Be an Employee to Blow One’s Whistle?

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By William Wiley

Pop Quiz:  If an individual who is not a federal employee discloses an agency’s gross mismanagement and then is denied federal employment in reprisal by an agency for making that disclosure, is that individual entitled to pursue a whistleblower reprisal claim through OSC and the Board?

Hmmm.

And the answer is: Nobody knows.

That’s why on January 19, the Board issued a Federal Register notice calling for amicus briefs to address the issue, 81 Federal Register 11 (January 19, 2016), pp. 2913-2914. Seems as though there’s a case pending at MSPB that raises a similar hypothetical and the Board would like to know what you wonderful practitioners think about the issue, Mark Abernathy v. Army, MSPB Docket No. DC–1221–14–0364–W–1.

Now, I know many of you readers have a lot of spare time on your hands and are looking for something extra to do. And you’d like to show off your employment law chops just in case our next President’s transition team is looking for a new Board member (actually, two) over at MSPB about this time next year. What better way to have a sample of your work to send to them than an elucidating legal brief, discussing the pros and cons of both interpretations of the Whistleblower protection legislation (especially in light of the Department of Defense Authorization Act of 1987 – zzz), while reaching the conclusion that everyone on Earth, natural-born citizens and genetically-modified organisms alike, as well as citizens as yet unborn, and perhaps even visitors from other planets (with a proper visa, of course) is a protected whistleblower.

On one hand, it’s nice to see the Board members asking for an opinion from us practitioners. Goodness knows, they should have done that before they went down the dark road of Miller-reassignments and world-wide comparator employee analysis. On the other hand, although this is no doubt an important question for Mr. Abernathy (and perhaps your loyal reporter, were he seeking future federal employment), does it really concern enough potential appellants to be worth the effort of a call for amici?

As Pope Francis once said, “Who am I to judge?” The Members want to know your opinions, and now’s your chance to tell them. The deadline is February 9 so don’t dilly-dally. Be sure to review the Federal Register notice carefully so that you can fully understand this issue. Write well, write strongly, and perhaps affect the future course of federal employment law.

And, simultaneously create a nice writing sample for the President-elect to consider on her way to being inaugurated.

Numbers, We Love Numbers

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By William Wiley

Recently at FELTG, we stumbled across a copy of some MSPB case numbers that we found to be interesting (some call it dumpster-diving; others call it hard journalistic research). From what we could figure out, MSPB HQ has finally turned the corner on processing the multitudinous appeals from the Stupid Sequestration we all endured a couple of years ago. The Office of Appeals Counsel (if you have been to our famous MSPB Law Week seminar, you know who and how important that office is) has reduced its case backlog to just over 150 cases. That’s a remarkable achievement, given the workload increase that office has endured because of the Board’s decision to begin issuing non-precedential decisions several years ago.  150 pending cases is about the level of backload in OAC when I was MSPB’s Chief Counsel in the ’90s, a period of relatively expedient and consistent case processing (if I do say so myself).

The situation with the judges in the regional offices, however, is much darker. For nearly its entire existence, each Board Chairman has imposed a goal of issuing decisions in all initial appeals (the judge’s decision) within 120 days. And more than one MSPB administrative judge has been quietly moved into other employment over the years when he could not keep up with the pace of 120-day adjudication. In a perfect world, the regions would have a backlog of zero cases more than 120 days old. Practically speaking, a few cases will be so complex as to require more time, so you might expect a backlog of maybe 10-12 over-age cases.

As of the end the previous year, according to the reports we recently received, the Board’s regional offices had a 120-day-old backload of over 900 cases.

When you consider that number, think of each of the individual appellants who have a significant part of their lives on hold, awaiting a regional decision in their case. Think of the growing liability exposure each agency involved in the appeal has, if the case involves potential backpay. In my day, in a situation like this, we would have moved troops from HQ to the field to help with the backlog, as soon as we were able to work out details with the Board’s professional association and office directors. I wonder if the current leadership of the Board is taking action to help in the regions.

Proposing a Demotion

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By William Wiley

Questions, we get questions. Not many questions about demotions, however, because agencies rarely use them. But recently we got an interesting query as to exactly what to include in the proposal letter of a demotion:

Today, someone who should know MSPB case law told me that when an agency proposes a demotion, it is required for the proposal letter to state the position and grade to which the agency is proposing the employee will be demoted. This someone added that if this requirement is not met, MSPB will conclude that a due process violation has occurred. I asked this someone to point me to case law, but s/he could only identify the due process cases with which we are all familiar. Am I missing something? How does an employee’s ignorance of the specific job and grade to which he may be demoted impact his due process rights?

And our FELTG response:

Very nice to hear from you. As for your question, amazingly this issue has not come up squarely before the Board, at least not in any final opinions and orders. I think that’s because demotions are rare and because agencies more-or-less routinely say in the proposal letter the step and grade of the demotion. Doing so helps to set the expand bracket for negotiating a lesser demotion with the employee after he responds to the proposal.

From a due process standpoint, I can see a potential problem if I really strain my brain. For example, if we were to propose a “suspension” without stating the length, that might give the employee/appellant the argument that if he had known of the length of the suspension, he would have exercised his response rights differently. If you think about it, an employee might not put a lot of effort into defending against a one-day suspension, but might hire a lawyer for his response if the suspension was going to be 90 days. I can see an analogy to a demotion in that if we don’t tell the employee how much salary he has the potential to lose, he doesn’t know how to exercise his due process right to respond. He might not respond at all if the demotion were one-grade, but might hire a big law firm if it was going to be from a GS-12 to a GS-5.

On the practical side, I don’t know why we would NOT tell the employee to what level the demotion would be. Doing so gives us one less thing to worry about as a possible reversal point (and we know that arbitrators and recently the Board are looking very hard at due process). The employee has a right to respond to the penalty analysis in Douglas. Without knowing the severity of the penalty (the degree of the demotion), it arguably would be difficult for him to respond to the penalty assessment (because he doesn’t know the degree of the penalty).

In my practice, I never propose a demotion. If the employee has done something that warrants a demotion, it also warrants a removal. Therefore, I propose a removal, allow the employee to respond, then offer a voluntarily demotion as an alternative. If the employee accepts, I’ve avoided the appeal/complaint/grievance process. If he does not, the Deciding Official can still implement a demotion instead of the proposed removal as it is a lesser penalty.

Hope this helps. Let me know if you need anything else. Wiley@FELTG.com

Reasonable Accommodation: Alternative Effective Accommodations versus Undue Hardship

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By Deryn Sumner

Last week I joined Ernie Hadley and Gary Gilbert for FELTG’s twice-annual open enrollment session, EEOC Law Week in Washington, D.C. On Wednesday, we walked through disability discrimination law, the various theories that can be applied to these claims, and the obligations employers have to accommodate employees with disabilities.

As Ernie and Gary like to say, there are no points awarded for creativity in analyzing disability discrimination claims. First, the employer must determine if the employee is an individual with a disability by establishing he or she has a medical condition which substantially limits a major life activity.  Since the passage of the ADA Amendments Act more than six years ago, this is not an onerous standard for employees to meet.  Next, the employer must determine if the employee is qualified to perform the essential functions of the position with or without an accommodation.  If the employee meets these criteria, remember that an employer must provide an accommodation unless providing the accommodation would pose an undue hardship to the employer.

Based on some of the questions we received during the sessions and the breaks at EEOC Law Week, I wanted to talk a bit more about this requirement that the employer provide an accommodation.  Sometimes in response to a request from an employee for accommodation, the initial reaction is to conclude that the accommodation requested is not reasonable.  That then leads to the decision to argue that it would be an undue hardship to provide the requested accommodation.  And that is going to land the agency in hot water for failing to accommodate the employee.  Instead of focusing on arguing whether the accommodation requested by the employee might pose an undue hardship, agencies should instead focus on how an effective accommodation can be provided.

Recall, at this point, the agency has already determined that the employee is qualified to perform the position with or without accommodation.  So, the employee can perform the job and the question turns to what accommodations the agency can provide.  The law is clear that the employee does not need to be provided with the accommodation of his or her choice, but merely an effective accommodation.  So instead of preparing to argue as to how the requested accommodation poses an undue hardship, the agency should engage in the interactive process and figure out what the agency can reasonably do to allow the employee to perform the essential functions of the job.  Don’t focus on how the employee’s requested accommodation is unreasonable; look to what effective accommodations can be provided.  This is the part of the process where creativity is encouraged.  Different accommodations work for different people with different medical conditions working in different positions.

And a final reminder: undue hardship is a defense to a claim of disability discrimination and should not be asserted without being very confident that it really would be an undue hardship to accommodate the employee.  The Commission’s regulations at 29 CFR 1630.2 state the factors that should be considered in such an analysis:

  1. The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding;
  2. The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;
  3. The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities;
  4. The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
  5. The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

Proceed down this path at your own risk.  Instead, if the accommodation requested by the employee is not feasible, the agency should focus on what alternative effective accommodations can be offered to allow this employee to perform his or her job. Sumner@FELTG.com