Using a PIP in a 752 Performance Removal

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By William Wiley

Another reader question. And this one is from an attorney at one of those few agencies that is not covered by the unacceptable performance removal provisions of 5 USC Chapter 43. Does a Performance Improvement Plan have any place in that non-432 world?

The issue:

Dear FELTG Super-Brains,

Because we are a government corporation, our agency cannot use Chapter 43 to remove employees for poor performance and rather, must use Chapter 75. Nevertheless, we still place poorly-performing employees on performance improvement plans.

I know that under Chapter 43, if an employee passes a PIP but later fails to maintain their performance in same performance measures from the PIP during the year following the PIP, they can be removed without being put on another PIP. My question is, is there any similar advantage offered to agencies for removals under Chapter 75? Or does the test remain the same no matter what?

And our insightful (or not) FELTG answer:

Very nice to hear from you. As for your question, we don’t have any MSPB cases on point, but the same old Chapter 75 logic applies:

  • First, you have to tell the employee what you expect (i.e., have a rule and tell him the rule). A PIP Initiation letter will do that for you. If at the end of the PIP the employee has failed to meet the expectations you set (MSPB likes to call those expectations “firm benchmarks”), you have a violation of the rule and a basis for a 752 removal.
  • If the employee successfully completes the PIP by getting her performance up to an acceptable level, give the employee a PIP Warning Letter, There’s a sample on p. 230 of the world-famous textbook, UnCivil Servant, deweypub.com.
  • If the employee fails during the PIP or post-PIP and you propose a removal, you’ll have to do a Douglas Analysis to justify the termination. The fact that you’ve previously PIPed him for the element he has failed will go to the factors: isolated or repeated, work record performance, and clarity of notice; perhaps rehabilitation potential. Unfortunately, a PIP failure works against removal when evaluating the Douglas Factor related to “intentional.” One of the beauties of a classic Chapter 43 removal is that intent is irrelevant; not so in a 752 performance removal.

Unfortunately, under Chapter 75, you’ll run into judges who want to evaluate your standard of performance to determine whether in their mind, you have set a level of performance that deserves a removal for failure. In a classic Chapter 43 case, on the other hand, a judge cannot evaluate the wisdom of the critical element. Winlock v. DHS, 2009 MSPB 23, is a good Chapter 75 case to look at regarding this little hurdle, although there DHS did not use a PIP.

Another unfortunately: we’ve seen a new collection of Board members since Whitlock. This Board even in a Chapter 43 performance has stuck its nose into the strength of the agency’s determination as to whether a standard was too tough. In Muff v. Commerce, 2012 MSPB 5, the Board came up with some stupid “genuinely unacceptable performance” approach, although there I think they were put off more by the length of the post-PIP period for determining subsequent unacceptable performance, and not the standard itself. The good news is that only one of the Board members who voted in Muff is still serving, so maybe we can avoid any further inroads into management’s right to set a performance standard.

Too bad you can’t use Chapter 43. It is a dynamite tool for holding people accountable. Tomorrow, I’m drafting a proposed removal for a client who initiated a PIP at the end of February. 30 days and out is a pretty decent way to get people to do their jobs.

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

If the Agency Settles, Does that Mean the Employee Wins?

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By Deborah Hopkins

Settlement makes up a major part of federal employment law practice. In fact, most disputes in our field settle – whether they initiate as grievances, EEO complaints or as appeals of agency disciplinary action – before they ever get to hearing.

Settlement happens. A lot. Yet somehow, this is a topic that doesn’t get a lot of love in the training world. Many of us think we know how to settle, but few of us are actually ever trained in the skills required to negotiate settlement agreements. Settlement Skills is certainly not a mandatory class in law school, and no agency or union that we know of requires its reps to complete training in settlement negotiations or ADR.

There are several considerations to make when determining whether your case is one that’s prime for a settlement offer.

First, both sides have to be willing to settle. If you approach the employee (or, for employee reps, if you approach the agency) and they are not willing to discuss settlement, you’re probably done right there. You can always ask again, and as most of you know, the AJs at MSPB and EEOC are going to ask about the possibility of settlement at just about every phase of the process, but if one side says no, you can’t force settlement on them.

Second, you should consider the conditions that will be included in the settlement agreement. Will there be an admission of fault or liability? Is an apology required? Will there be a reference clause or a confidentiality clause? No two settlements are exactly alike, and some fairly creative arrangements might be upheld. One of my favorite settlement stories occurred in David Hasselhoff’s 2008 divorce settlement: he got to keep total possession of the nickname “Hoff” and the catchphrase “Don’t Hassle the Hoff.”

Third, there must be valid consideration. For those of you who didn’t go to law school (or for those of you who remain scarred from Contracts), consideration is a bargained-for exchange and in the context of settlement it means that each party has to do something to its detriment as part of the agreement – something that it isn’t already obligated to do. Valid consideration might be something like the reassignment of a supervisor, or allowing an employee to swap work shifts. An agency offering to treat a complainant with “dignity and respect,” and “not to retaliate,” however, is not valid consideration; the EEOC said the agency was already supposed to be doing that for all employees. Dubois v. Social Security Administration, EEOC Request No. 05950808 (1997).

Fourth (and last for today), the agreement must be enforceable. The agreement must be signed by someone with the authority to make the decisions held therein, and the agency and employee must have the ability to comply with the terms. Included in the enforceability requirement is a “meeting of the minds” where all parties involved know what they’re agreeing to. Without that, the settlement agreement is not valid.

Just last week I was talking with an agency representative who is a former prosecutor, and she said, “Settlement just doesn’t feel right. It’s like saying the employee did nothing wrong and the agency is at fault.” That’s a common misconception, but it’s not actually grounded in truth; settlement has no direct tie to liability or admissions of wrongdoing. Even if it goes against your gut to consider settlement, keep in mind it’s not just about “guilt and innocence.” Plus, even when an agency wins an appeal, it’s going to cost the agency. A successful defense averages about $100,000 at MSPB. We’re not sure how much is costs for an agency to win at EEOC, but a number of those complaints are unresolved for years, so we know it’s not cheap.

As a result of interest in this topic, we at FELTG are creating a brand new open enrollment program on Settlement, Mediation, ADR and other ways to resolve disputes without litigation. The program will be held in Washington, DC October 31 – November 4, and we’ll have details for you, including an official program name, very soon. Hopkins@FELTG.com

Career Lessons Learned from My Father

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By Deryn Sumner

Note: When I first started contributing to this newsletter, Bill told me I had liberty to write about pretty much whatever I wanted.  I’m going to take him up on that this month and depart a bit from my usual arena of EEO law to talk about my father’s career and the lessons I’ve learned from him. [Editor’s Note: I am so smart.]

On April 18, 2016, my father, Dave Sumner, retires from his position as the Chief Executive Officer of the American Radio Relay League (ARRL).  Those of you who know what ham radio is likely know about ARRL.  Those of you who are ham radio operators may even know of my dad, even if you know him only by his call sign, K1ZZ.  In his role leading this non-profit, he traveled all over the United States and the world attending conferences, meetings, and conventions spreading the mission of ARRL: to advance the art, science, and enjoyment of Amateur Radio.

My dad has been a ham radio operator since the age of 13. He held his first job at ARRL during the summer of 1968 and joined the staff full-time in 1972.  Some people work to live and some people live to work.  My father was fortunate enough to make a career of his passion for ham radio.  That’s not to say that he enjoyed every aspect of the job.  However, last week my husband and I flew up to Connecticut to attend my father’s retirement party.  I had the pleasure of hearing some very touching tributes to my dad’s work over the many decades he has been with ARRL.  Some common themes emerged during these speeches that caused me to reflect on what makes a good supervisor that will cause people to travel (some from other countries) on a rainy Thursday evening to wish you well at the end of your career.  I thought these themes I came away with would be helpful for some of the supervisors in the FELTG audience.

Don’t take credit for the work of others, and go out of your way to make sure those who do good work get proper credit for it.  Be a mentor to other employees.  Hearing so many people say what a mentor my dad had been to them in their careers was a delight.  If someone comes to you with a problem, don’t make that person feel silly or demeaned for asking you for help.  Assist with working to come up with a solution and make sure they have the tools to get there.  Keep calm, even when things get contentious.  Know your stuff or know where to look it up.  Everyone may not have the encyclopedic memory of my dad (I know I don’t) but you should speak with authority and credibility.

At its core, employment discrimination law is about the relationships between people.  It is one of the best (and of course, one of the worst) aspects of the job representing employers and employees in EEO complaints.  Employees feel disrespected, even harassed, by how their supervisor treats them.  A supervisor tries to hold accountable an employee who feels defensive, or that the criticism is unwarranted, or that they haven’t been given the proper tools to succeed.  Sometimes these interactions are motivated by unlawful animus because of someone’s membership in a protected class.  And sometimes it’s because two people have a poor working relationship or there is disrespect on either side.  Being in a room with a group of people who respected my dad and will miss working with him was certainly a highlight for me.  Supervising people is hard work, but remembering that they are people and part of your job as a supervisor is to nurture their careers, can go a long way to fostering healthy working relationships. Sumner@FELTG.com

More Use and Misuse – Vehicles

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By Barbara Haga

I am sure that most readers are generally familiar with the statutory penalties associated with misuse of government vehicles.  I thought that a look at some cases that involve that charge and related forms of misuse might be a good topic to explore.  There are lessons here about careful crafting of charges.

The Basics

The statutory penalty appears in 31 USC 1349.  Enacted in 1982, the relevant sections include the following:

  •  1349. Adverse personnel actions

(b) An officer or employee who willfully uses or authorizes the use of a passenger motor vehicle or aircraft owned or leased by the United States Government (except for an official purpose authorized by section 1344 of this title ) or otherwise violates section 1344 shall be suspended without pay by the head of the agency. The officer or employee shall be suspended for at least one month, and when circumstances warrant, for a longer period or summarily removed from office.

(§ 1344 discusses when passenger vehicles may be used for transportation for a government employee from the residence to the place of employment and other related usage such as travel to a transportation terminal).

We will look at two Federal Circuit cases which outline what is required to establish willful use and reckless disregard, or actually in these two cases what didn’t establish those things.  These cases look at two different scenarios – one when an employee was authorized by a supervisor to use the vehicle and then the supervisor was disciplined and one when the employee used the vehicle assigned to him for a purpose judged to be unofficial.

Supervisor Authorizing Employee to use Vehicle

The case is Felton v. Equal Employment Opportunity Commission, 820 F.2d 391 (Fed. Cir. 1987). Felton was the acting Area Office Director of an EEOC Regional Office.  A clerical staff member’s car broke down on the expressway on the way to work.  She got a ride to work and subsequently asked Felton to use the office’s government vehicle to return to the car to secure it before it was towed for service.  Felton approved use of the vehicle and was suspended for 30 days thereafter.  She testified in her appeal that she authorized the use of the vehicle because the employee was the only typist, there was a large backlog at the time, and that use of the vehicle allowed resolution of the problem with the vehicle in the most expeditious means possible.  The AJ found that the Felton knowingly, consciously, and willfully authorized the use of the vehicle for other than an official purpose and sustained the suspension.  The full Board denied the petition for review and Felton challenged the action at the Federal Circuit.

The Court reversed the suspension, finding that there was no evidence to support a finding that Felton knew or should have known that the use of the vehicle in the circumstance of this case would be held to constitute use for a nonofficial purpose or that she acted in reckless disregard of whether the use was or was not for an official purpose.  The analysis included examination of both points.

The decision explains how “willful” should be reviewed.  The Court wrote:

Had the word “willful” been omitted from the statute, the statute would apply to any authorization for any nonofficial purpose. It would have made all unwitting, inadvertent and unintended authorizations for nonofficial use a violation of the statute. See Morissette v. United States, 342 U.S. 246, 270 (1952). Such is not the case here. That Felton’s authorization was a conscious and intentional act was admitted, but a knowing authorization of an unofficial use requires more than mere intent to do the act which lays the foundation for the charge. The requirement of knowledge applies to the unofficial nature of the use as well to the authorization. She knew and intended to authorize the use, but there is no evidence that she actually knew that the use would be characterized as “nonofficial.”

The Court also found that Felton’s authorization was not in reckless disregard of whether the use was for other than official purposes.  In this they reviewed the content of the EEOC order on use of motor vehicles.  The policy stated: “What constitutes official purposes is a matter of administrative discretion to be exercised within applicable laws. The general rule may be stated that where transportation is essential to the successful operation of an authorized agency purpose, such transportation will be considered as official use.”  The Court found it reasonable that Felton could conclude that that the use authorized in this case would promote the successful operation of the agency.

What the Court did find was that Felton made a poor management choice.  The AJ outlined other options Felton had, such as denying use of the vehicle and leave for the purpose of going back to the vehicle.  The AJ relied on these management alternatives to support a finding that the decision was made in reckless disregard of whether the use was official.  The Court’s decision takes the opposite approach.  The Court found that Felton’s testimony made it clear that she acted in good faith in attempting to solve an office emergency.  The decision states, “Poor management judgment in selecting an alternative to solve an office emergency does not rise to the level of ‘reckless disregard.’”  [Editor’s Note: And why any agency would ever charge willful misuse of a government vehicle under this statute is beyond my understanding. Charge “Misuse of Government Property” and save yourself all this heartburn.] Haga@FELTG.com

Sanctions: Improper Conduct During Discovery

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By Deryn Sumner 

So far in this series, we’ve talked about when sanctions against agencies can be appropriate for untimely investigations or incomplete investigations.  Now let’s move, with a sigh of relief for most of you, to a discussion regarding when either party can be sanctioned for failing to comply with discovery.  Many of the key elements are the same as what we discussed in February.  When deciding whether sanctions are appropriate for conduct during discovery, the Commission will look at (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; and (4) the effect on the integrity of the EEO process.

Before moving for sanctions is appropriate, in almost every instance the moving party must first obtain a motion to compel the other side to fully respond to the discovery, whether it be written discovery requests or notices of deposition.  If the non-moving party simply has not responded at all, a motion to compel will be very succinct (and should as always include evidence as to what efforts were made to resolve the matter before asking for the administrative judge’s involvement).  If the non-moving party still fails to comply with discovery, even after being compelled to do so, then moving for sanctions may be appropriate.

Your motion for sanctions should go through each of the four elements listed above.  If the party has not responded to discovery at all, then the extent and nature of the non-compliance is significant.  Be prepared to explain how the lack of cooperation has harmed you during discovery.  Some judges take the view that anything important to the case is already included in the Report of Investigation and further discovery is not really necessary.  You should explain why the information you are looking for is important for the case.  For example, I have yet to see a Report of Investigation that has a comprehensive collection of information regarding damages.  If you are representing the agency, you need to have discovery on this prior to the hearing.

As 29 CFR 1614.109(f)(3) states, sanctions can include an adverse inference against the non-moving party, excluding evidence that would be helpful to the non-moving party from the record, awarding attorneys’ fees to a complainant, or dismissing a complainant’s hearing request and remanding the complaint to the agency for issuance of a Final Agency Decision.  This last one is what we see most often in cases where the complainant fails to comply with discovery.  Should that be the case, then the administrative judge may find it appropriate to dismiss the hearing request and order the agency to issue a FAD.  Note, that does not mean the complaint itself is dismissed; the agency must still issue a decision on the merits.  For agencies, sanctions for failing to cooperate in discovery can include excluding certain types of evidence that would support its argument or paying for the attorneys’ fees and costs (including deposition transcripts in some cases) for the complainant’s attorney to conduct the discovery.  The best way to avoid such sanctions is to cooperate with discovery and communicate with the other side about what can be produced and what a reasonable timeframe for production is.  Sumner@FELTG.com

EEO Retaliation is a Different Animal

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By William Wiley

Those who have been to FELTG’s famous and fabulous EEOC law seminars have seen a graph similar to the one at the left. It represents the fascinating fact that for all the bases of civil rights discrimination (there are eight or so, depending on how you count things), a single basis accounts for about two-thirds of the findings of discrimination in the federal government. And that basis is “reprisal for previous EEO activity,” usually previously filing a discrimination complaint claiming some other basis for discrimination: race, sex, age, whatever.

For years, I concluded that the reason that EEOC was more likely to find that a supervisor had acted in retaliation for a previous EEO complaint was my assessment of the human response to being accused of race/sex/age discrimination. If one of your employees formally charges you with being a racist or a sexual harasser, those are fightin’ words in a lot of places. No normal person wants to be accused of violating another’s civil rights. And terms like “racist” and “sexist” are heavily laden with strong emotion. Therefore, it seemed to me that a supervisor accused of civil rights mistreatment by someone she works with could be expected to change his feelings toward that employee, because that supervisor knows she’s not a racist or sexist or whatever.

We teach in our classes that such feelings on the part of the supervisor are a normal human response and are not a problem AS LONG AS the supervisor doesn’t act on those feelings. In other words, if one of your employees calls you a racist, you may feel hurt and even angry, but you are absolutely forbidden by law from acting on those feelings in any official way. For example, you don’t have to invite the guy who called you a sexist to your birthday party, but you do have to make sure you continue to treat the employee in the workplace based on merit principles, and certainly not in retaliation for the filing of a complaint against you.

So when I saw statistics like those graphed above, that described how 2/3 of the findings of discrimination against federal supervisors are findings of reprisal for prior EEO activity, I wasn’t totally surprised. Yes, the relative number of finds of reprisal as compared to the other categories seemed exceptionally large, but I didn’t know what else it could be. My thought was that many supervisors just could not help themselves when accused of discrimination in EEO complaints, and no matter what we taught or what they knew the law required, retaliation slipped into actions that the supervisor took with the employee, often unconsciously.

And then, EEOC clarified things for me. I’m embarrassed to say that I didn’t see this earlier, but embarrassment has never stopped me before. As I’m sure many of you experienced readers know, but that I did not realize until recently, EEOC applies TWO DIFFERENT STANDARDS when deciding whether a supervisor has violated an employee’s civil rights by discriminating against him.

  • If an employee is claiming race/sex/age/etc. discrimination, EEOC applies the general anti-discrimination provisions of statute which make it unlawful to discriminate with respect to an individual’s “terms, conditions, or privileges of employment.”
  • However, if an employee is claiming reprisal/retaliation for prior EEO activity, EEOC applies the exceptionally broad statutory retaliation provisions that make it unlawful “to discriminate” against an individual because of that individual’s previous EEO activity.

The retaliation provisions set no qualifiers on the term “to discriminate,” and therefore prohibit any discrimination that is reasonably likely to deter protected activity. They do not restrict the actions that can be challenged to those that affect the terms and conditions of employment. Thus, a violation will be found if an employer retaliates against a worker for engaging in protected activity through threats, harassment in or out of the workplace, or any other adverse treatment that is reasonably likely to deter protected activity by that individual or other employees.

Consider the birthday party mentioned above. If you were to announce to your coworker guests that you did not invite Wiley because he is an Episcopalian, that would not be religious discrimination because your statements are not a “term, condition, or privilege of employment.” However, if you were to announce to those same guests that you did not invite Wiley because he previously filed a religious discrimination complaint against you, then you would likely be found liable in a retaliation complaint because your statement “is reasonably likely to deter protected activity by that individual or other employees.”

As EEOC so eloquently stated recently, “This broad view of coverage accords with the primary purpose of the anti-retaliation provisions, which is to maintain unfettered access to statutory remedial mechanisms. Regardless of the degree or quality of harm to the particular complainant, retaliation harms the public interest by deterring others from filing a complaint. An interpretation of Title VII that permits some forms of retaliation to go unpunished would undermine the effectiveness of the EEO statutes and conflict with the language and purpose of the anti-retaliation provisions.” Zenia M. v. HHS, EEOC No. 0120121845 (2015).

The bar is not particularly high for an employee to prove race/sex/age/etc. discrimination. It is lower still when an employee claims that her supervisor has retaliated against her for previous EEO activity. It’s not just human nature that causes a relatively high number of retaliation findings, it’s the law. Wiley@FELTG.com

Use and Misuse (and Beware March Madness)

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By Barbara Haga

Looking at the broader topic of misuse seemed a good segue this month, since we have spent a few months on credit card misuse.  As you can imagine, Federal employees have misused a lot of things.  Credit cards, vehicles, agency mail systems, and computers easily come to mind, but there are other cases regarding misuse of agency systems or the information contained in those systems, credentials, and more.

Remember, with misuse cases the required proof is that the “thing” was used for purposes other than those for which the property is made available or other than those authorized by law, rule, or regulation.  There is no requirement to prove intent.  So to paraphrase the famous Detective Joe Friday (and if you are too young to know who that is, my apologies), we “just need the facts, ma’am.”  For misuse to be sustained, we need to show that the thing belonged to the government, its value if it is a thing that is consumed or damaged, what rules controlled its use, and that the employee did something else with it or to it.

But, before we get in to that, it only seems prudent to mention a potential for misuse that it is present with us at this moment.

The NCAA Basketball Tournament

I am getting caught up in March Madness.  My team is doing really well this year and expected to be a first seed in the tournament.  Many years ago I remember taking leave to be able to get home to watch tournament games, but now with online access staying up on developments is much easier.  This year, I have watched them play on a TV in my office while I am “working.”  But, I am not a Federal employee anymore and there are no rules that prevent me from trying to do two things at once!  But, for those of you who spend time dealing with misconduct issues, this has the potential to create some problems in the workplace. (I’m not even going to touch telework!)

It’s not a small thing.  Government Executive ran an article entitled “Feds: Put That NCAA Bracket Away and Get Back to Work” on March 19, 2014, reminding employees of the issues related to gambling in the workplace.  Some agencies send reminders to employees to avoid this seasonal mental illness on premises and during work hours. 

There are a couple of MSPB decisions that mention the tournament.  An EPA Attorney-Advisor was removed for five charges, which included misuse of government equipment and misuse of official time, and lack of candor.  The misuse of the equipment involved e-mails of a sexually explicit nature and also e-mail relating to private legal work which were sent during work hours.  The amount of time utilized in those activities was apparently significant, but there was specific mention of the office basketball pool.  The employee argued that removal was improper, because other EPA employees and supervisors misused government time and equipment by participating in the annual pool.  The arbitrator upheld the removal.  The Federal Circuit, in a non-precedential decision, affirmed the arbitrator’s decision. Jones v. EPA, 2012-3167 (Fed. Cir. 2013)

One employee blew the whistle on his boss regarding an illegal tournament gambling pool that was conducted using government resources.  Once again, these were not low-level employees but Economists.  The allegations regarding the pool were a small piece in a much larger whistleblower case, but this scenario does point out that not everyone is caught up in March Madness and some of those folks could report the activity to the IG as this employee did.  This whistleblower case went to the Federal Circuit and the court vacated the decision to sustain the removal and remanded it to the Board.  Whitmore v. DoL, 680 F.3d 1353 (Fed. Cir. 2012).

Credentials and Misuse of Agency Information System

The case of Stanley Mungaray is an interesting one in that he was in trouble for misuse of more than one thing.  He was a GS-14 Customs and Border Patrol (CBP) International Officer in the Office of International Affairs at their headquarters. Talk about being held to a higher standard – he was in the enforcement business, working in Internal Affairs in their headquarters organization.  His appeal is actually an involuntary retirement appeal since he retired prior to the removal action being effected.  When the Board reviews this type of involuntary separation case part of the analysis is whether the agency had reasonable grounds for threatening to take the adverse action, so the decision goes into detail about the charges.

Mungaray was charged with misuse of the Treasury Enforcement Communications System/Automated Targeting System to perform unauthorized searches on his wife and his son-in-law.  These are systems that keep track of individuals entering and exiting the country and of individuals involved in or suspected of being involved in crimes, and are used in targeting, identifying, and preventing potential terrorists and terrorist weapons from entering the United States.  In addition to these charges, there was a lack of candor charge because when interviewed by Internal Affairs about the inquiries conducted using his unique log-in he said he didn’t believe he had searched records on his wife and denied making a search on his son-in-law.

The other misuse issues involved use of his credentials.  There were two different charges.  The first involved using his badge to get out of a traffic ticket.  He was pulled over in Loudon County, an area northwest of Washington, DC.  While retrieving his registration information, he displayed his government badge to the officer:

He did not receive a citation for speeding as a result of displaying his badge, but the Loudoun County Sheriff’s Department has a practice to request the phone number of the supervisor of any law enforcement officer found to be in violation of local traffic laws and, as a condition of not being cited, to notify the offending driver’s supervisor of the traffic violation. Nevertheless, it is a misuse of position for a CBP employee to identify himself as a law enforcement officer as a means to avoid being ticketed, even for routine traffic stops.

Apparently Loudon County followed through on their policy because the decision mentions “record evidence” of Mungaray’s use of his credentials in this situation.

The fourth infraction while not specifically a misuse charge is a close cousin.  The charge was failure to safeguard those same credentials.  He lost them in a grocery store, but did not report the loss for four days, which violated the agency’s policy.

Mungaray didn’t reply to the proposed removal and did not produce any evidence that the charges were unfounded and thus the Administrative Judge found no jurisdiction over the claim of involuntary separation.  Mungaray v. DHS, DC-0752-15-0622-I-1 (2015)(NP). Haga@FELTG.com

EEOC Files Two Private Sector Lawsuits Alleging Sexual Orientation Discrimination Based On Theory Asserted in Federal Sector Case

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By Deryn Sumner

Although most of us interact with EEOC on the federal sector side of the house, EEOC is also responsible for investigating charges of discrimination filed against covered private sector employers and for filing lawsuits in U.S. District Court on behalf of employees if it finds discrimination but is unable to settle the case after making a finding. This month, EEOC announced that it has filed two lawsuits alleging that private sector employers subjected employees to sex based discrimination under Title VII because of their sexual orientation, a theory the Commission articulated in last year’s Office of Federal Operations’ decision, Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).

The first lawsuit is against Scott Medical Health Center and alleges that the employer subjected a male employee to harassment because of his sexual orientation, including subjecting the employee to anti-gay epithets and comments about his sexuality and sex life in the workplace. The suit alleges the employee’s supervisor did nothing to respond to the employee’s complaints of harassment and the employee quit after the conduct continued for weeks. The EEOC filed suit in the U.S. District Court for the Western District of Pennsylvania.

The second lawsuit is against IFCO Systems and is filed in the U.S. District Court for the District of Maryland, Baltimore Division. There, the lawsuit alleges that a supervisor made numerous comments to a lesbian employee regarding her sexual orientation, including, “I want to turn you back into a woman” and “you would look good in a dress.” The supervisor is also alleged to have blown a kiss at the employee and circled his tongue at her in a suggestive manner.  The employee was terminated just days after she called an employee hotline to complain about the harassment.

The EEOC’s decision to bring these lawsuits under a theory of sex discrimination continues its position articulated last year in Baldwin. In that decision, after lengthy analysis and detailing of the history of sex discrimination claims, EEOC concluded that as sexual orientation discrimination involves treating employees differently because of their sex, it should be considered sex based discrimination under Title VII. EEOC’s press release announcing these lawsuits references the Baldwin decision.  It also mentions the guide the Commission released in 2015, in conjunction with OPM, OSC, and the MSPB, for federal agencies on how to address sexual orientation and gender identity issues in the federal government, which we discussed in the June 2015 newsletter.

Using the concepts of sex stereotyping to argue sex-based discrimination is not a new theory. The Supreme Court’s decision from 1989 in Price Waterhouse v. Hopkins, 490 U.S. 228, held that the employer violated Title VII when it denied a promotion to Ann Hopkins for her lack of adherence to gender norms, including that she did not walk femininely, talk femininely, dress femininely, wear make-up, style her hair, or wear jewelry. EEOC has relied upon this theory that claims of an individual failing to identify to gender norms (such as marrying someone of the opposite sex, see Veretto v. USPS, EEOC Appeal No. 0120110873 (2011)) necessarily relate back to sex and are covered by Title VII.  We’ll be waiting to see how these district courts respond to the Commission’s theory. Sumner@FELTG.com

The FELTG Certified Practitioner Program

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Have you heard about FELTG’s Certified Practitioner program? For full-week participants in our open enrollment seminars, FELTG now offers certification as a trained and tested practitioner in the following specialized areas of federal employment law:

  • MSPB Law and Practice
  • EEOC Law and Practice
  • FLRA Law and Practice
  • MSPB & EEOC Hearing Advocacy

Frankly, we had hoped that the Office of Personnel Management would offer this certification, or perhaps one or more of the oversight agencies as part of their outreach programs. However, as we have been unsuccessful at convincing The Powers That Be that continuing education and testing in this field are vital and in the best interests of America, we have decided to do it ourselves. Here’s how it works:

  • The program is open to all attorneys, human resources specialists, and union officials who participate in all five days of one of the above-listed open-enrollment seminars.
  • On the first day of the program, each participant will be given the choice as to whether to become a candidate for certification, or to forego the opportunity and to complete the program without the certification option.
  • Those who choose to become candidates will participate as is usual in our seminar. The primary difference is that at the end of each day, for those who have chosen to become certification candidates, our instructors will administer a written test covering the topics that were presented during that day.
  • Candidates who successfully complete each of the five daily tests will receive a special “Certified Practitioner” certificate and FELTG lapel pen at the end of the program to denote their unique accomplishment. Those who do not complete each test successfully are, of course, welcome to return for refresher training and another chance at certification when the program is repeated later in our calendar.

For the successful candidates in the FELTG certification program, we will stand behind you whenever your knowledge in the field of federal employment law becomes a relevant issue. For example, if you apply for a position that requires a particular skill in an area of federal employment law, upon request we will provide a statement to the selecting official as to exactly what you have demonstrated your knowledge in by completion of the testing process. Or, perhaps you are looking for an accomplishment that demonstrates the high level of performance you have attained during a particular appraisal year. Becoming certified as to your proficiency by an outside organization might well be the difference in a summary rating between “Exceeds Expectations” and “Outstanding.” If nothing else, the cool certification lapel pen will serve to strike fear and wonder into those with whom you come into contact professionally.

We hope you will give professional certification serious consideration. It’s one thing to call yourself an employment law specialist; it’s another thing altogether to prove you deserve that characterization. Join the best of the best. Become FELTG-certified good at what you do.

MSPB Attorney-Whistleblower Officially Wins IRA Appeal

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By Deborah Hopkins

You may have been following the articles I’ve been writing since late 2014 about the Korb case, which detailed the journey of a 25-year employee at MSPB who filed an Individual Right of Action (IRA) appeal alleging whistleblower reprisal. It presented a unique situation because the MSPB is the agency which, according to its website, is the guardian of merit principles, yet with Korb it reprised against him in direct violation of one of those principles.

Well, big news a few days ago: the initial decision has arrived. Korb v. MSPB, MB-1221-14-0002-W-1 (March 2, 2016). In the first paragraph of decision, the judge writes, “[T]he Appellant made a protected disclosure and engaged in protected activity. While these were not the sole factors in the Agency’s decision to take personnel actions against him, they were nevertheless contributing factors and the Agency did not prove by clear and convincing evidence that it would have taken the same personnel action in the absence of any protected activity or disclosure.”

Before we get into the facts of a case, let’s do a quick review of the whistleblower process for federal employees under the Whistleblower Protection Act (WPA).

FIRST: Agency employee “blows the whistle” and makes a disclosure about a violation he sees. If the violation fits in to one of these four categories below, it is considered a protected disclosure and the agency may not retaliate against the employee for blowing the whistle.

    1. Violation of law, rule, or regulation
    2. Gross mismanagement or gross waste of funds
    3. Substantial and specific danger to public health or safety
    4. Abuse of authority
  • A protected disclosure is generally made to a supervisor, the OIG, law enforcement, the Office of Special Counsel, Congress or the media. (Note: a disclosure to a co-worker is not protected under the WPA.)
  • In general, employees of certain agencies – most within the intelligence community – do not have whistleblower protections.

NEXT: If the agency takes an adverse action or a performance-based action against the employee, it must prove by clear and convincing evidence that it would have taken the same action even absent the whistleblowing. This standard of proof is high and is intended to protect whistleblowers from retaliation by the agency.

Now that we have a crash course on whistleblower reprisal (covered in detail during the Friday of MSPB Law Week, next held in San Francisco June 13-17), let’s do a quick review of what exactly Korb, a GS-14 Attorney-Advisor at MSPB, did:

  • Made a protected disclosure when he submitted a document containing evidence of significant delays in the processing of MSPB appeals. There was no valid reason for the delays and MSPB had no internal tracking system to ensure the appeals were moved in a timely manner. Korb independently gathered information to track the cases that had been sitting in the office, and provided the information to his supervisors in the Office of Appeals Counsel (OAC). This information was not well-known outside of his office so the judge determined that Korb’s disclosure was more than just a policy disagreement, so it was protected as whistleblowing activity (under the category of gross mismanagement).
  • Korb also engaged in protected activity when he assisted a co-worker in filing a grievance.

Here’s what MSPB did to Korb in response:

  • Charged him with misconduct for altering boilerplate language in a case writing template, and proposed a 21-day suspension for the alleged misconduct.
  • Reassigned one of Korb’s significant job duties (writing the MSPB Case Report) to another office.
  • Did not select Korb for a promotion.

In the decision, the judge found that the disclosures Korb made to his OAC supervisors and the MSPB Chairman about the delay in case processing times reflected poorly on higher management at MSPB found that MSPB leadership was motivated to take a personnel action because Korb had engaged in protected activity, and that they would not have done so had the appellant not engaged in that protected activity. The agency did show by clear and convincing evidence that it would not have selected Korb for the promotion, so on that allegation MSPB prevailed.

The damages issue has not been decided and there will be a hearing on that issue, but a few corrective actions have been ordered and acted upon:

  • The duty of writing the MSPB Case Reports has been returned to Korb, and his performance standards have been adjusted to reflect what they would have been prior to the reassignment of that duty to another department
  • The Notice of Proposed Suspension has been removed from Korb’s OPF

Interestingly enough, this case is non-precedential but I guarantee, we don’t see cases like this every day. Each party has until April 6 to decide if it will file a Petition for Review (PFR) of the judge’s decision. If either side does, it will be interesting because PFRs generally go to the Board members for review. Because the Board Chairman was named in this complaint and because the Board is a party to this litigation, there is an apparent conflict of interest. We will have to wait to see what the Board members do if a PFR is filed. None of the options are particularly attractive. Stay tuned. Hopkins@FELTG.com

Korb v. MSPB decision full text.