Accommodating the Disabled Commuter

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By William Wiley

One of the confusing areas of disability accommodation law is the issue of how far does an agency have to go to accommodate a disabled employee who cannot travel to the workplace each day to do his job. A major reason that this is confusing is that several federal courts have reached a conclusion different from that of EEOC. According to the rationale of some circuits, if the employee cannot get herself to the workplace, she does not meet the definition of “qualified” because commuting to work is an “essential function” of every position. Therefore, the employer need do nothing regarding the accommodation of her commuting problem. On the other hand, EEOC has taken the position that the ability to commute to work is NOT an essential function of many positions, and that therefore a government agency DOES INDEED have to attempt to accommodate the commuting problems caused by an employee’s disabilities.

EEOC’s approach causes significant problems for the federal employer. When confronted with a demand for accommodation of a commuting limitation from a disabled employee, the agency has to prove that the accommodations required regarding commuting are not possible (are an “undue hardship” if you’re in to exacting legal language). If the employee’s work can be done primarily from his home, then part-time or full-time flexiplace often is the accommodation that satisfies EEOC’s expectations.

But what about the situation in which there is no claim that the employee has to physically be at the worksite to get the job done? If the guy can’t drive, walk, or take public transportation, does the agency have to send a driver to transport him from home to work?

Fortunately, we now know that the answer is “no.”

In a recent case, EEOC had to deal with a complaint in which the disabled employee claimed a right to accommodation of his commuting problems caused by a constellation of medical infirmities when his agency changed his work location two days a week to a facility 30 miles away:

  • Sleep apnea
  • Spinal cord injury
  • Monocular vision
  • Carpal tunnel syndrome

When the agency failed to accommodate the employee’s disability, EEOC found no disability discrimination based on the following:

  1. The change in work locations was based on legitimate management reasons.
  2. Non-disabled employees were adversely affected by the change as well as was the disabled complainant.
  3. The agency considered the complainant’s accommodation requests “seriously and timely.”
  4. The agency need not provide a driver for the complaint to commute twice a week because doing so would require the expenditure of funds not provided for by Congress. Federal agencies are not permitted to use appropriated funds to get an employee to work. Describing the complainant’s commuting costs as personal expenses, the Agency asserted that they were not payable from appropriated funds, absent specific statutory authority and it relied on 17 Comp. Gen. 1 (1947); 16 Comp. Gen. 64 (1936). The Agency also argued that 31 U.S.C. § 1344(a)(1) limited the use of appropriated funds for passenger vehicles to “official purposes.”

More broadly stated, the Commission held specifically that the agency “had no responsibility to provide transportation to Complainant for his commute.” Perhaps EEOC has held this before. However, it cites to no specific prior holding directly on point, and this may be the first time it has so held. For those of you in the business of dealing with employee requests for disability accommodation involving their commute, this one might be a decision worth remembering: Gerald L. v. DVA, EEOC No. 0120130776 (2015). Wiley@FELTG.com

Sanctions: Holding Agencies Accountable for Deficient EEO Investigations

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By Deryn Sumner

As promised, we’re going to continue to dive into our discussion of when sanctions can be awarded by EEOC by turning to instances where agencies fail to produce a complete report of investigation (ROI) during the formal complaint stage.  Let’s start at the source. Under the Commission’s regulations at 29 CFR 1614.108(b), an agency must “develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint.” So what does “impartial and appropriate” actually mean?  For that, let’s turn to Management Directive 110, Chapter 6 (remember, MD-110 underwent substantial revisions last year so check your citations before cutting and pasting from past filings).  “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.”  MD-110, Ch. 6.  Specifically, “the investigation shall include a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the complainant’s group as compared with the treatment of other similarly situated employees, if any; and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.”  Id.  For example, if it’s a non-selection case, the investigation needs to include documents and evidence related to the selection process, any interview notes, affidavits from the panel members, and copies of the relevant applications in order to be appropriate.

Okay, now that we have some more specifics of what is included in an appropriate factual record, let’s turn to what complainants can request if the investigation does not meet this standard. The EEOC’s Handbook for Administrative Judges, although it dates back to 2002, is a great resource. (It’s available at http://www.eeoc.gov/federal/ajhandbook.cfm) It provides:

If the Administrative Judge reviews the investigative report and finds that the agency did not sufficiently comply with its obligation under 29 C.F.R. 1614.108(b) to develop an impartial factual record from which a reasonable fact finder could determine whether discrimination occurred, or if no investigation has been conducted, the Administrative Judge retains jurisdiction over the complaint. In order to develop the record, the Administrative Judge may order the agency to complete an investigation within a particular time period; allow the parties to develop the record themselves through discovery; issue orders for the production of documents and witnesses; or consider appropriate sanctions. The parties shall initially bear their own costs with regard to discovery, unless the Administrative Judge requires the agency to bear the costs for the complainant to obtain depositions or any other discovery because the agency has failed to complete its investigation as required by 29 C.F.R. 1614.108(e) or has failed to investigate the allegations adequately pursuant to EEO MD-110, Chapter Six.

Handbook for Administrative Judges, Ch. 1, Part I(D)(2) (July 1, 2002).

Turning back to MD-110, sanctions are also referenced as the appropriate response to a deficient record:

Where it is clear that the agency failed to develop an impartial and appropriate factual record, an Administrative Judge may exercise his/her discretion to issue sanctions.  In such circumstances, the sanctions listed in § § 1614.109(f)(3) are available. See Petersel v. U.S. Postal Service, EEOC Appeal No. 0720060075 (Oct. 30, 2008) (Administrative Judge properly drew an adverse inference against the agency when the investigative report failed to include any comparative data on other employees); Royal v. Dep’t. of Veterans Affairs, EEOC Appeal No. 0720070045 (September 25, 2009) (finding that the agency’s delay in completing the investigation within the 180-day regulatory period is no small noncompliance matter and warrants a sanction). Even when an agency eventually completes the investigation during the hearing stage an Administrative Judge may issue sanctions in appropriate circumstances.

See MD-110, Ch. 6, Part XII (emphasis added).

Now, before you get too worried, here’s some saving grace:

Before an Administrative Judge may sanction an agency for failing to develop an impartial and appropriate factual record, the Administrative Judge must issue an order to the agency or request the documents, records, comparative data, statistics, or affidavits. 29 C.F.R. § 1614.109(f)(3).…The notice to show cause to the agency may, in appropriate circumstances, provide the agency with an opportunity to take such action as the Administrative Judge deems necessary to correct the deficiencies in the record…Only on the failure of the agency to comply with the Administrative Judge’s order or request and the notice to show cause may the Administrative Judge impose a sanction or the sanctions identified in the order or request.

So what should you do as an agency representative when you realize the ROI is deficient? I suggest proactively seeking to supplement the record with the missing information before sanctions are requested. And, as we discussed last month, if the administrative judge is set on sanctioning the agency, argue for a lesser sanction. And don’t think about hiding behind your agency’s use of a contractor to complete investigations. The Commission has held that an agency’s use of a contractor to investigate EEO complaints does not excuse the agency’s responsibility for the timeliness and content of these investigations.  See Adkins v. FDIC, EEOC Appeal No. 0720080052 (January 13, 2012) citing MD-110, Chapter 5; Cox v. Social Security Admin., Appeal No. 0720050055 (December 24, 2009). Sumner@FELTG.com

Sometimes I Just Want to Sit Down and Cry

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By William Wiley

Here at old FELTG, we get some pretty attenuated questions; e.g., “But Bill, what if the individual is actually the hybrid spawn of a space alien and married to a retired federal employee? Is he still entitled to survivor benefits EVEN THOUGH HIS ALLEGIANCES GENETICALLY SPEAKING CLEARLY ARE TO ANOTHER SOLAR SYSTEM???”

Yes, there are some really far out issues in the field of federal employment law, issues for which any answer is just an educated guess. And then, every now and then, we get a question about something so basic, so fundamental to our business, that it makes us consider giving up the fight. How can we maintain a protected civil service when some of the people who are supposed to know, don’t know even the fundamentals? Recently, we got a question from a FELTG-Friend who is trying to do the right thing, but is catching a load of resistance from some smarty-pants up the chain of command who thinks he knows better. Here’s the question and our response.

Question:

Dear FELTG – I am getting pushback on whether the proposing officials are required to conduct a Douglas Factor Analysis.  We have been doing that for a long time and I believe you have taught this in your classes.

5 CFR 752 states, (b) Notice of proposed action. (1) An employee against whom an action is proposed is entitled to at least 30 days’ advance written notice unless there is an exception pursuant to paragraph (d) of this section. The notice must state the specific reason(s) for the proposed action, and inform the employee of his or her right to review the material which is relied on to support the reasons for action given in the notice.

Your thoughts?

Our Answer:

Dear Concerned Reader – Always nice to hear from you. However, it saddens (and angers) me greatly that after all these years, you would get pushback on something this basic. Here’s the deal.

  1. Thirty-five years ago, back in 1981, the Douglas decision itself said that the Douglas factors should be included in the Proposal Letter (thereby requiring the proposing official to do a Douglas factor analysis). Here’s a direct quote from Douglas:

Moreover, aggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors …

The “advance notice” is what we call the proposal latter, so there it is in black and white. Occasionally, I run into a practitioner who wants to argue that only the “aggravating” Douglas factors have to be included in the proposal letter, not ALL of them. Well, that’s correct. But do I really want to get into a fight about whether a particular factor is aggravating or mitigating? For example, is an eight-year length of service aggravating or mitigating? The smartest thing to do is include all the Douglas factors in the proposal, thereby satisfying the mandate in Douglas without the risk of mistakenly calling something mitigating when a judge decides it was actually aggravating.

  1. Due process requires that we notify the employee why his removal is being proposed (thereby allowing him to defend himself), then make the decision. That notice goes into the Proposal Letter, followed by a decision on the proposal in the Decision Letter. In 2009, the Board said that it was OK for the Decision Letter to contain penalty factors not in the Proposal Letter, reasoning that due process did not require prior notice of facts related to the penalty, only to the actual misconduct. Well, the Federal Circuit Court of Appeals thought that was stupid and reversed the Board, thereby ruling that the employee must be put on notice of any penalty factors on which the Board is going to rely in making its decision. Ward v. USPS, 2010-3021 (Fed. Cir. 2011). If you think about it, it just makes sense. The employee should be allowed to defend himself, to correct the record BEFORE a decision is made. If the Proposal Letter does not contain the Douglas factors, and the Deciding Official relies on an incorrect Douglas factor (e.g., mistakenly believing that the employee has poor performance or did not apologize for the misconduct), the employee has been denied the opportunity to defend himself.
  1. Given that Douglas requires that the penalty factors be in the Proposal Letter, and that Ward prohibits the Deciding Official from considering any penalty factors not in the Proposal Letter, here’s the best practice that we now teach:
  • The Proposal Letter analyzes all 12 Douglas factors in great detail using an attached Douglas Factor Worksheet.
  • The employee responds and defends herself.
  • The Deciding Official considers only the proposal and the response in making his decision.
  • If he agrees with the Douglas factor analysis of the proposal, he says nothing extra about the penalty assessment. Instead, the decision letter says something like this: “I have considered the penalty assessment factor analysis contained in the Proposal Letter, and I concur.” That way, he avoids a Ward mistake.
  • If he disagrees with the assessment of the Douglas factors in the Proposal, or wants to consider other penalty facts that were not in the proposal, the safest thing for him to do is to notify the employee of these extra ruminations, and allow her to respond. Otherwise, he runs a risk of a due process violation. He may get away with not taking this extra step, but I don’t believe in taking chances when I can avoid them. I am a careful man, at least when it comes to defending a removal.

Hope this is helpful. Again, I cannot stress how much it bothers me that someone in a position to know better is giving you push back on an issue this basic. Our famous MSPB Law Week seminar is coming up in June in San Francisco. Maybe give the guy FELTG’s toll-free number so we can register him: 844-at-FELTG. Lord knows he needs it, and so does our great country.

(In a related vein, separate from this emailed question, last week in one of our FELTG seminars, a participant asked me if her agency was making a mistake with the Douglas factor analysis. As she explained it, the Proposal Letter policy in her office was simply to identify each of the 12 factors as either “Aggravating” or “Mitigating” without any detail as to the facts relied upon by the Proposing Official to reach that conclusion. I almost cried. How anyone in our business could possibly think that relying on secret facts to determine a penalty satisfies the Constitutional requirement for due process is simply beyond my ability to grasp. Friends, I realize that it would be additional work. But we need practitioner certification. And we should allow only Certified Practitioners to make these sorts of decisions. You don’t learn this stuff in law school. You can’t possibly learn all that needs to be learned by on-the-job experience because you won’t take enough adverse or performance removals in a career to cover all the bases. For the sake of our Great Country (or our soon-to-be great again country, depending on your politics), please get trained. And, feel sorry for people who are not.) Wiley@FELTG.com

EEOC Seeks Public Comment on Proposed Regulations Related to Increasing Employment of Individuals with Disabilities in the Federal Government

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By Deryn Sumner

Over the past year or so, EEOC has sought public comment regarding revisions to the regulations at 29 CFR 1614, as well as its guidance regarding workplace retaliation. It now seeks public input regarding a proposed amendment to the regulations concerning the employment of individuals with disabilities in the federal government.  This continues the administrative rulemaking process started in 2014 when the EEOC issued an Advance Notice of Proposed Rulemaking. At that time, EEOC sought general comments on how the regulations could be improved to highlight the federal government’s priority in serving as a model employer of individuals with disabilities. According to this latest posting, EEOC received 89 comments, of which 80 were generally supportive of the Commission’s proposal to amend its regulations.  The Notice of Proposed Rulemaking (NPRM) issued recently seeks to simplify the directives and guidance contained in the Americans with Disabilities Act of 1990 and its implementing regulations, Management Directive 715, and various executive orders.  The NPRM also seeks to modify the goals for federal agencies in hiring individuals with disabilities and would change the MD-715 reporting requirements accordingly.

I think the most interesting aspect of the NPRM is the inclusion of personal services. As the summary explains, “Personal services allowing employees to participate in the workplace may include assistance with eating, drinking, using the restroom, and putting on and taking off clothing. For many individuals with targeted disabilities such as paralysis or cerebral palsy, full participation in the workplace is impossible without such services. The lack of PAS in the workplace and/or the fear of losing personal services provided by means-tested assistance programs are stubborn and persistent barriers to employment for individuals with certain significant disabilities.”

The proposed rulemaking notes that agencies would not be required to provide such personal services as reasonable accommodations. However, these changes would require agencies to provide personal services as part of the agency’s affirmative action plan as long as doing so would not cause an undue hardship. [Editor’s Note: Feels a bit like EEOC is making a distinction without a difference. Does an agency have to employ someone to provide personal services for a disabled employee? No, not as a reasonable accommodation; yes, as part of the agency’s affirmative action plan.] This requirement can be fulfilled by hiring employees to perform personal services along with other duties, or to hire personal assistants who would assist more than one individual with a disability.  The summary notes that agencies could consider having a pool of personal assistants throughout the agency or at a particular location, and notes that many agencies currently use such a pooling system to provide sign language interpreters.

The EEOC’s NPRM comes after OPM issued a report to the President on October 9, 2015, noting, “By the end of Fiscal Year (FY) 2014, total permanent Federal employment for people with disabilities had increased from 234,395 in FY 2013 to 247,608, representing an increase from 12.80 percent to 13.56 percent. New hires with disabilities totaled 20,615, representing an increase from 18.18 percent in FY 2013 to 19.74 percent in FY2014.” The full report is available here: https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reports/disability-report-fy2014.pdf if you are interested in seeing how your agency stacks up. The comment period closes on April 25, 2016 and comments in response to the NPRM can be submitted here: https://www.federalregister.gov/articles/2016/02/24/2016-03530/affirmative-action-for-individuals-with-disabilities-in-the-federal-government. Sumner@FELTG.com

Learning Points Can Be Good or Bad

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By William Wiley

Several months ago, I wrote an article regarding a Board case in which the agency won the appeal in spite of there being significant mistakes in the proposal and decision letters, McCook v. HUD, MSPB No. SF-0752-14-0389-I-1 (August 3, 2015) (NP). I learned a couple of things from publishing that article:

The Good Learning Point: If you’re trying to get folks to read your articles, mention their colleagues by name.

The Bad Learning Point: Readers don’t always understand what we intend to say in the articles we publish. If you need to re-read the McCook article, you can find it on our website in the September 2015 Newsletter. My intent in the piece was a) to point out that the proposal letter was deficient because it did not specifically address the relevant Douglas factors, b) to highlight that the decision letter was problematic because it mentioned several Douglas Factors not in the proposal, and c) to get the attention of the shakers and movers at HUD (and other agencies) to make some changes so that these sorts of basic mistakes don’t occur again. The only potential shakers or movers I could identify in the Board’s decision were the three attorneys who represented HUD on appeal. My hope was that some reader would know them, point out to them that in my opinion attaching a Douglas Factor Worksheet to the proposal would have taken care of the difficulties in this case, and that HUD would take steps to make sure that things were done better the next time.

Man-oh-man, did I get that wrong. Instead of my hearing from someone at HUD that their procedures now would ensure that a Douglas Factor Worksheet is attached to every proposed removal letter, I got a long letter from a supervisory attorney explaining the hard work his staff had put into defending HUD in this appeal, and how that should have been the point of my article. I responded to his letter with my explanation of the point of the piece; not being to criticize the legal work his attorneys put forth to defend the agency in the appeal, but to criticize the system that allowed whoever was the (no doubt well-intended) practitioner who drafted the proposal and decision letters to make mistakes that have been mistakes since 1981.

Another Bad Learning Point:  I thought that with a personal clarification of the point of the article, the matter would be put to rest. Perhaps because this was all happening around Christmas week, I was in a particularly optimistic mood. So foolish of me. After receiving my response, the supervisor called me early one morning to tell me the following:

  • People who read the article saw it as a criticism of the legal work done by his attorneys.
  • I should publish his letter to me.
  • He has never read our newsletter before.
  • It is the fault of the managers who signed the discipline letters, not the practitioners who drafted them, that a proper Douglas assessment was not a part of each letter.
  • He does not know of any affirmative steps that have been taken within HUD to make sure that in the future a Douglas Factor Worksheet is attached to every proposed removal.

I was heartbroken. My hope in writing the article was that readers would understand the important of complying with Douglas and thereby avoid the mistakes that were made in this case. Instead, I am told that the article was seen as an unjustified criticism of the legal work done by the agency representatives in this appeal. So let me do the best I can to clarify what we here at FELTG are saying about the McCook decision:

  1. The proposal letter should have had a Douglas Factor Worksheet attached so that the Board did not have to dig around to find the penalty factors in the proposal.
  2. The decision letter should not have referenced ANY penalty factors not in the proposal because that is almost always a violation of due process.
  3. Nothing in this Board opinion suggests that the three agency attorneys who defended HUD in this appeal are anything other than super-duper hard-working lawyers with superior litigation skills.

So, my apologies if my article hurt someone’s feelings or made anyone feel singled out. That was certainly not my intent. We publish our FELTG newsletters to help agencies and those who defend employees know the mistakes that are made in this business and the best practices to protect employee rights. For those readers who do not read our articles that way, who do not see them as helpful but rather as critical, perhaps you shouldn’t read our newsletter any longer.

For those of you who read our articles for legal analysis, best practices, and traps to avoid – stay with us. Yes, we knock MSPB/EEOC/FLRA/OPM/OSC/Congress when they do something we think is bad for America, and we occasionally call out employer agencies that should be doing things better. Heck, we even point out mistakes made personally by one of us who writes or teaches for FELTG. Our newsletter is an instructional tool, not a congratulatory make-you-feel-better column in the back section of your local newspaper.

If you want to learn how to do your job better, here we are with our articles and our courses. Otherwise, we wish you the best of luck. Wiley@FELTG.com

 

Speaking of Jack Ryan

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By William Wiley

In one of the last scenes in The Hunt for Red October, Jack’s with the good Russians in the Red October when Viktor Tupolv, captain of the bad Russians in another submarine, against the wishes of his crew, arms his torpedoes in their tubes before firing them. You see, the reason this is a bad idea is that if the pre-armed torpedoes don’t immediately hit their target, they can circle back and destroy the submarine that initially fired them. Which, of course, is what happens in the movie, thereby destroying the Russian submarine and crew while allowing the Red October to escape to the good old US of A. Just before the pre-armed torpedoes complete their circle and are about to explode the Russian sub, knowing that death is imminent, one of the crew members turns angrily to Captain Tupolev, and says, “You arrogant ass: you’ve killed us!” Then, “Boom,” the end, just like real life is supposed to work.

Right now, you are probably asking yourself “Where the devil is Wiley going with this one? Isn’t this supposed to be a newsletter about federal employment law?” Well, watch this segue, those of you who are faint of heart readers.

Some of you might remember that back in 2010, this newsletter sounded the alarm bell when the two “new” members of MSPB issued three decisions that threw the business of federal employment law for a loop.  Known as The Terrible Trilogy, the cases of Lewis/Villada/Woebcke redefined the importance of comparative penalties in the Douglas factor analysis defending the penalty selection, essentially requiring agencies – for the first time in history – to implement the same penalties for similar misconduct throughout an agency. Since 1981, penalties given to other similarly-situated employees had always been one of many considerations in determining whether a penalty was reasonable. Post-Trilogy, that consideration was raised to a very high level, requiring agencies that fire employees for misconduct to lose their cases and have to reverse the removals if on appeal the employee-appellant could point to other cases like his in which the agency did not implement a removal. Reversal was to become the outcome even if otherwise the employee had engaged in misconduct if the evidence demonstrated disparate penalties.

Man, oh, man, did this reporter have a criticizing fit when The Trilogy was issued. First, it is physically impossible to track all the misconduct within an agency, and then assure that everyone gets the same penalty. Can’t humanly do it because you’d have to know all the MISCONDUCT (not just all DISCIPLINE) within an agency, and somehow centralize all of the agency’s decision making. Second, within weeks, smart agencies realized that discipline within the philosophy of The Trilogy made the most sense if the agency always administered the most severe discipline option available. As a practical matter, an agency could best defend itself if it always terminated for a particular act of misconduct, thereby keeping the bar set high for the next similar acts of misconduct. Doing anything less than removal today could hamstring an agency well into the future for years.

Officially, The Terrible Trilogy remains good law at the Board today. In 2012, new Member Robins wisely dissented from the direction this philosophy was taking, arguing that The Trilogy “attempts to promote a universal consistency in penalty setting, without identifying any legitimate individual interest or broad value under the Civil Service Reform Act that is being promoted.” Boucher v. USPS, 118 MSPR 640 (2012). Unfortunately, Member Robbins is only one vote on a three-member Board, and The Trilogy lives on, despite his disagreement.

Which brings us to appeal decisions released just this month. As most everyone who has had access to the news media these past couples of years knows, our friends at the Department of Veterans Affairs have caught Congressional-Hell because of what has been seen as unaccounted-for gross managerial misconduct on the part of certain senior executives at DVA. So loud has been the outcry that Congress created a law that allows the Secretary of DVA to fire SESers with relatively little due process and a truncated appeal to a single MSPB administrative judge. The goal was to make it easier for DVA to hold its senior leadership accountable by enforcing discipline based on perceived acts of misconduct, with exceedingly little oversight.

DVA has been trying to take advantage of this new law. It has disciplined several SESers within the past 18 months, the appeal results of three of which were released just last week (two demotions and a removal). And guess what: all three were reversed by the Board’s judges, and two of the three reversals (the analysis of the third has not yet been released) were based in large part on the disparate penalty philosophy of The Terrible Trilogy. Yes, charges of misconduct were sustained in both cases. However, even in spite of the proven misconduct, the judges applied The Trilogy, found other employees who in the opinion of the judges were similar-enough to the appellants to warrant the same discipline, and who DVA had chosen not to discipline because the Deciding Official at DVA saw the misconduct of the others to be significantly less harmful. When confronted with such disparity, the judges dutifully applied The Terrible Trilogy and reversed DVA’s demotions of the two individuals. Rubens v. DVA, PH-0707-16-0151-J-1 (2016) and Graves v. DVA, CH-0707-16-0180-J-1 (2016).

Focus on the essence of this situation for a moment:

  1. Congress wants it to be easier for DVA to discipline its senior leadership.
  2. DVA has embarked on an effort to comply with this Congressional mandate.
  3. However, DVA has been frustrated in doing so by MSPB’s Terrible Trilogy philosophy.

As a result of these reversals, it was reported last week that the leadership of DVA is going to try to get its SES appointees removed from Title V of the United States code so that the nasty old MSPB will no longer have jurisdiction over DVA’s attempts to hold its employees accountable . In other words, DVA wants MSPB to go away in large part because of The Terrible Trilogy, the exact cases the FELTG newsletter warned the world about back in 2010. If DVA leadership manages to get Congressional action to move MSPB out of the picture for its SESers, how long will it take for DVA to recognize the huge benefit of no MSPB oversight, and push for legislation that would apply the no-MSPB approach to ALL of its employees? And after that, how long will it be before other agencies see that DVA can hold its employees accountable more easily than can they, and then they will ask for similar MSPB-exclusion from Congress for their agencies?

Captain Tupolev arrogantly launched his torpedoes armed in their tubes, thereby destroying himself and his crew when they circled around. The Board Members at MSPB arrogantly issued The Terrible Trilogy in 2010, mandating that all agency discipline be the same. The Trilogy has now circled around, in the eyes of some allowing senior government managers who have engaged in misconduct to escape accountability for their misconduct. And the result may well be that MSPB becomes irrelevant to government oversight as agencies apply to Congress to be excluded from its jurisdiction. In fact, the day may well come when Congress sees no need for an MSPB whatsoever because of the impediments to accountability that it creates as it decides cases, and the dearth of agencies willing to be constrained by its wacko decisions like The Terrible Trilogy. If that happens, do you know what we’ll all hear in the distance because of what the Board has done to itself?

Boom! Wiley@FELTG.com

Sanctions: Failure to Complete EEO Investigation within the Regulatory Timeframe

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By Deryn Sumner

As promised, over the next several months we’re going to discuss the different reasons why one party may move for sanctions against the other in the federal sector EEO process. We’re going to begin this month with something that has gotten a fair amount of attention over the past nine years: requests for sanctions, up to and including default judgment, when an agency fails to timely complete an EEO investigation.

Let’s first look at the regulations.  The Commission’s regulations at 29 C.F.R. 1614.108(f) require agencies to complete EEO investigations within 180 days of the filing of (not receipt of) the formal complaint.  Where a complainant subsequently amends a complaint, the investigation must be completed by either 180 days from the last amendment, or 360 days from the filing of the original formal complaint, whichever is earlier. Once that timeframe has expired, a complainant can request a hearing, even if the investigation is not completed. 

A new requirement set forth in Chapter 5 of the recently revised MD-110 states, “If the investigation is not completed within the 180-day time limit, the agency must send a notice to complainant informing him/her that the investigation is not complete, providing an estimated date by which it will be complete and explaining that s/he has a right to request a hearing from a Commission Administrative Judge or to file a civil action in the appropriate U.S. District Court. The notice must be in writing, must describe the hearing process including some explanation of discovery and burdens of proof, and must acknowledge that its issuance does not bar complainant from seeking sanctions.” I can’t say I’ve seen one of these notices yet. 

There are many cases addressing whether sanctions are appropriate for untimely investigations.  Here are some of the key ones for federal sector practitioners to review and familiarize themselves with:

  • Cox v. Social Sec. Admin., EEOC App. No. 0720050055 (Dec. 24, 2009)
  • Royal v. Dep’t of Veterans Aff., EEOC App. No. 0720070045 (Sept. 10, 2007), recons. den., 0520080052 (Sept. 25, 2009)
  • Talahongva-Adams v. Dep’t of the Interior, EEOC App. No. 0120081694 (May 28, 2010)
  • Giza v. Dep’t of Justice, EEOC App. No. 0720100051 (Apr. 1, 2011)
  • Montes-Rodriguez v. Dep’t of Agriculture, EEOC App. No. 0120080282 (Jan. 12, 2012), recons. den. 0520120295 (Dec. 20, 2012)
  • Adkins v. FDIC, EEOC App. No. 0720080052 (Jan. 13, 2012)

So, how should Agency Representatives respond to such motions when, in fact, the Agency failed to timely complete the investigation?  First, engage in an investigation of your own.  Figure out what happened and who was involved in the investigation.  Get affidavits, if appropriate, from the EEO or Civil Rights staff explaining what happened.  Also, if the timeframes of non-compliance are minimal, point that out to the Administrative Judge.  However, do not hang your hat on blaming a contractor for any delays.  As the Commission said in Cox, “The fact that the agency contracts with an outside company to conduct the investigation does not absolve it of its responsibility to ensure that the ROI is adequately developed on which to base a decision.”   

In your response, talk about each of the pertinent factors cited by the Commission in determining what, if any, sanction is appropriate.  These include (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.  If the non-compliance was minimal and if there’s any colorable justification for the delay, provide that.  Point out if there were no prejudicial effects or consequences as a result of the delay.     

If the non-compliance is substantial, you may want to consider arguing for a lesser sanction, such as covering the costs of discovery, in lieu of default judgment.  As the Commission stated in Cox, “In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party’s failure to show good cause for its actions, as well as to equitably remedy the opposing party.” (citations omitted and emphasis added). 

Next month we’ll talk about when sanctions are appropriate for insufficient or inappropriate investigations.  Sumner@FELTG.com

Relief Regarding Administrative Leave During Notice Period

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By William Wiley

We don’t often write about pending legislation in our newsletter for two reasons:

  1. Most bills do not become law, and
  2. Tentative legislation confuses people (your humble reporter included) because it’s hard to remember, “Did that thing ever pass or did I just read about it?”

However, we’re going to make an exception this time because this bill, if it becomes law and is properly implemented, could save your life.

S. 2450, the bi-partisan “Administrative Leave Act of 2016” recently was voted out of committee and thereby has a decent chance of becoming law. The main purpose of the bill is to restrict the use of administrative leave (i.e., excused paid absence approved by agencies), not doubt in response to recent news reports about federal employees being on paid administrative leave for months and years because their supervisors (who apparently have not been to FELTG training) could not figure out what to do with them.

A number of agencies have embarked on a program to restrict the use of administrative leave even without this proposed legislation. I think we would all agree that the image of a federal employee sitting home watching soaps while drawing his six-figure salary when hard-working non-feds are fighting for a $15 federal minimum wage is enough to make one want to storm the Bastille.  Government waste is on the front pages a lot this year, in large part because of the upcoming Presidential election. Feeding such stories of government ineptitude to the populace is a tried-and-true method for getting folks to vote.

As much as we all might agree with the desire to curb excessive administrative leave, there are some times that the use of short-term administrative leave is not only desirable, but may be a life-and death matter. Those of you who have attended our supervisory training program, UnCivil Servant, know that we are big believers that once a supervisor has issued an employee a proposed removal letter, that employee should be removed from the workplace until a final agency decision is made on the proposal.  The main reason is that an employee who has been given a proposed removal is under a huge amount of stress, and stressed-out people sometimes become angry and dangerous. The Bureau of Labor and Statistics estimates that every workday of the year (Monday – Friday), about two people are killed by a coworker in a worksite. And you don’t have to read many news reports about those homicides to learn that many of those killings are directly related to workplace discipline or termination.  There are a number of other reasons, as well, to get people out of the workplace (e.g., curtailing access to sensitive agency information available to the about-too-be –fired employee who will soon be in need of some money), but the potential for homicide is the number one reason.

Unfortunately, a number of agencies (and other versions of administrative leave restriction proposed legislation) swipe at administrative leave control with a broad brush, failing to see the significant benefit of getting the employee out of the workplace once removal is proposed. As every reader of this newsletter knows, back in 1978 Congress said that any federal employee who has a removal proposed is entitled to 30 days of paid notice prior to the removal being effectuated. Agencies that restrict all administrative leave, regardless of duration or need, place employees in a dangerous situation once a proposal to remove is issued.

S. 2450, fortunately, addresses the need to get employees out of the workplace once a removal is proposed. While restricting administrative leave in other situations, this bill creates a new form of excused paid absence to be known as Notice Leave. Such leave can be implemented by an agency for the length of the notice period prior to a removal, most likely the 30-days created by Congress in 1978, but not necessarily so restricted should the agency grant a longer notice period. So all you federal employees out there who are reading this article and have concern for your own life as well as that of your coworkers and citizen clients of your agency, contact your Congress Members and Senators. Tell them you LOVE-LOVE-LOVE S. 2450 and that you hope they will vote for it.

The main downside to the legislation, however, is that it leaves it up to agencies to decide when Notice Leave should be used rather than mandating that it should be used in every proposed removal. The problem with that is that some idiot at some agency is going to decide that he can predict who is going to be dangerous after being given a proposed removal, and that only potentially dangerous employees should be placed on Notice Leave. That is SO foolish and arrogant. NO ONE can predict who is going to go over the edge once a proposal is issued.  Read the news reports about workplace homicides. In my collection of such articles, over half of the killings “came out of nowhere.” “She was so nice. No one would have guessed that she could become violent.” There is a special place in Hell (thank you, Madeline Albright) for individuals within agencies who declare that they can predict who is going to be violent, thereby arrogantly putting other people’s lives at risk.

Hey, all you policy makers out there. If S. 2450 becomes law, put on your grown-up pants and make an important policy decision for your organization. Accept that every employee who is issued a 30-day notice of a tentative removal can become life-or-death violent. Then, in line with the new law, issue a policy that within your organization, EVERY SINGLE EMPLOYEE who has a removal proposed will be placed on Notice Leave until the final decision is issued. After that, make sure that the darned decisions are issued not much later than 30 days, and the world will be a better place: Congress will be happy, the employees at your agency whose lives have been spared will be happy, and here at FELTG, we can finally put aside one of our big soap box speeches that we’ve been preaching for the past 15 years. Wiley@FELTG.com.

Discipline in the Public View – Credit Card Misuse VI

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By Barbara Haga

Last month’s column addressed travel and purchase card misuse.  We continue with a discussion of the OMB guidance regarding dealing with instances of misuse.    

OMB’s Opinion

Appendix B of OMB Circular A-123 entitled Improving the Management of Government Charge Card Programs (January 2009) sets out requirements for managing purchase and travel card programs.  Paragraph 3 includes requirements for training for card holders and approving officials; paragraph 4.3 mandates that agencies to establish risk management strategies including 1) closely monitoring delinquency reports from charge card vendors; 2) contacting appropriate personnel to ensure that delinquent payments are addressed and corrective actions are taken to prevent further occurrences; and 3) establishing controls, policies, and practices for ensuring appropriate charge card and convenience check usage and oversight of payment delinquencies, fraud, misuse, or abuse. 

Paragraph 4.5 address the actions agencies regarding delinquent card holders.  These include suspending the accounts as well as instructing the charge card vendor to cancel cards, initiate collection efforts, notify credit bureaus, etc. The guidance also suggests imposing disciplinary action deemed appropriate by the agency. Paragraph 4.9 makes a similar recommendation regarding purchase card holders. These suggestions seem reasonable, but somewhere between these paragraphs and Attachment 5 on Best Practices the recommended actions expanded to this list:

When initiating administrative or disciplinary actions for card misuse and/or for instances when account delinquency is discovered, CHARGE CARD MANAGERS SHOULD (my ALL CAPS), in addition to consultation with agency human resources professionals:

• Initiate verbal counseling and warning;

• Provide written warning;

• Suspend or revoke charge card privileges;

• Suspend or revoke employee security clearance;

• Include misuse or delinquency occurrence in employee performance evaluations;

• Suspend or terminate employment;

• Ensure consistent enforcement of penalties; and

• Publish actions taken by the agency for misuse of charge cards.

What are the Issues with this Guidance?

Thankfully OMB suggested that charge card program managers coordinate with the HR as part of these actions, but I am afraid that is not going to overcome some of the fundamental problems.  First, authority to take disciplinary action is normally delegated through the chain of command of an organization, so the proposing and deciding officials are typically supervisors and higher level managers in that employee’s reporting chain.  An agency might delegate authority for all of a certain type of action such as charge card abuse to one official, but in all of my review of cases related to charge card use I did not find a decision where that was noted. 

Some of the guidance regarding the charge card manager’s authority is reasonable.  Suspending or revoking charge card privileges is what one would expect the card manager to do in such circumstances.  Other parts of the guidance are problematic.  The list of actions states that charge card managers should, in consultation with agency human resources professionals, initiate verbal counseling and warning, provide written warning, suspend or terminate employment, and ensure consistent enforcement of penalties.  Since charge card managers would not be in the employee’s reporting chain in most cases, it is easy to anticipate where problems could arise.  Proposing and deciding officials are being told what to do so that they did not have authority to truly decide the matter (a la, security clearance denial/revocation cases).  One can imagine what the current MSPB would do with that kind of scenario. 

Speaking of security clearances, the guidance provides that charge card officials should suspend or revoke employee security clearances.  Reporting the information to security officials where card holders also are required to have security clearances would make sense since matters of debt and financial insolvency are issues in the granting of clearances, but I don’t know of a combination charge card program manager/security manager job in any agency.

Which recommendation makes the least sense?

Including occurrence of misuse or delinquency in employee performance evaluations is the suggestion that gives me the most heartburn. 

In June 2013 in one of my earliest FELTG columns I wrote about mixing up disciplinary matters in performance plans.  What I said then still makes sense. 

Disciplinary infractions should be dealt with in the discipline system, and performance problems should be dealt with performance procedures.   Procedures for dealing with poor performance are designed to teach and coach and develop skills and abilities so that the employee can meet the critical functions of the job.  Discipline is designed to correct misconduct – infractions, failure to follow rules and procedures, etc.

Misusing a credit card to me is a very clear example of failing to follow rules and procedures.  Would it make sense for an agency to give an opportunity period when Gerald uses his government travel card to take more cash advances than what is authorized for the period of travel?  With that logic if Gerald didn’t do it again during the opportunity period, there would be no action, right?   What if Gerald was disciplined for credit card misuse in the third month of the appraisal cycle and didn’t commit any further misconduct for the remaining nine months.  Should Gerald be rated at below Fully Successful?   

What to Expect

This is a topic that is getting attention. Just this week an article was issued by the Daily Signal, a publication of the Heritage Foundation, with the eye-catching title Government Employees Spent Almost $1 Million in Taxpayer Money at Casinos (http://dailysignal.com/2016/02/08/government-employees-spent-almost-1-million-in-taxpayer-money-at-casinos/). The article notes that the Senate passed legislation trying to put more teeth into credit card program management through the Saving Federal Dollars Through Better Use of Government Purchase and Travel Cards Act of 2015 (S. 1616) in December.  The article suggests that if money is being wasted on such expenditures perhaps budgets could be reduced as part of larger cost-cutting measures. 

The legislation was referred to the House Committee on Oversight and Government Reform on December 17th.  Govtrack.us says the bill has a 45% chance of passing.  The Committee is busy with trying to control administrative leave right now, but I think this will be an easy segue for them.  Haga@FELTG.com

Using a PIP for a 752 Removal

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By William Wiley

One of the great gifts of the Civil Service Reform Act of 1978 was the ability for agencies to remove poor performers using what have come to be called the “432” procedures. Misconduct removals (non-performance terminations) rely on the “752” procedures that have been around since the cooling of the Earth. The 432 procedures were brand new back in 1978 and have several advantages for agencies over the old 752 procedures:

  • A lower burden of proof to support the removal (substantial evidence rather than the preponderance required for 752 removals).
  • No mitigation of the penalty (under 752, agencies have to a Douglas Factor analysis to defend their removals) because the agency does not have to prove that the removal promotes the efficiency of the service.
  • All that really matters is what the employee does during the performance improvement period (the PIP or the Opportunity Period). Pre- and Post-PIP performance does not weigh into the calculus of a correct outcome.

Most federal agencies are covered by the 432 procedures. However, by statute a few are not, the U.S. Postal Service being the largest agency that is not covered. Therefore, the non-covered agencies have to use 752 procedures for everything: performance and conduct.

It is our experience here at FELTG that at least a couple of agencies who are not covered by 5 USC Chapter 43 (the 432 procedures) still like the idea of using a PIP when confronted with a poor performer. The question then becomes, what are the pros and cons of using a PIP in a world controlled by the 752 procedures.

First, the traps to avoid. Even though a Chapter 43-excluded agency might choose to develop a PIP approach to unacceptable performance problems, it does not thereby give itself the big 432 procedural advantages of a lower burden of proof and no need to prove the efficiency of the service using the Douglas Factors to defend the penalty. As a practical matter, although there’s no case law squarely on point, it would be perfectly reasonable for an arbitrator to expect to see a Douglas Factor analysis in a case in which the agency fires the employee for failing a 752-PIP, perhaps even insisting that an appropriate alternative to removal might be a suspension. A penalty ruling like that would be antithetical in a 432 performance removal, but not necessarily irrelevant in a 752-PIP removal.

However, even without these two big advantages, a 752-PIP approach to poor performance still has a significant advantage when compared to regular misconduct 752 removals. In a classic case of misconduct, the agency has to do an investigation into an act of rule-breaking conduct that has occurred in the past. It has to collect hard evidence to support a lot of facts that would be critical to proving the elements of whatever charge it comes up with. For example, did the employee walk out with an agency laptop in his backpack on January 15? Was the employee on notice that the start of his shift was 8:00 AM? Has the supervisor failed to enforce the rule in the past, thereby excusing the employee from obeying the rule today? These are all factual determinations that must be made, sometimes based on scant evidence or blurry security camera images.

Now, compare that with a PIP approach to poor performance. In a PIP situation, the supervisor is telling the employee that what is important is what happens in the future (during the PIP), not what happened in the past. Therefore, there’s no need to collect evidence relative to past performance because during the PIP, the supervisor will be collecting evidence of unacceptable performance as the PIP goes forward into the future. When we consult with supervisor clients during the PIP process here at FELTG, we review the supervisor’s efforts on a weekly basis and give immediate feedback as to the quality of the necessary PIP counseling as well as the adequacy of the evidence of poor performance that is being developed. That way, the supervisor can tweak her efforts during the PIP while evidence is being collected, thereby providing the employee better feedback and simultaneously building a more defensible action, should she decide at the end of the PIP that removal is warranted.

The PIP approach to performance-based removals under 752 lacks some of the great advantages of a classic 432 performance removal, but still gives us good reason to use it. Just be sure that you don’t make the mistake of thinking that if it talks like a PIP and walks like a PIP, you can use the lower burden and no-Douglas approach of a 432 removal. Wiley@FELTG.com.