EEOC Seeks Public Comments on Proposed Enforcement Guidance on Retaliation

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By Deryn Sumner

A few weeks ago, the EEOC announced that it is seeking public comment on a draft of proposed Enforcement Guidance concerning retaliation: http://www.eeoc.gov/eeoc/newsroom/release/1-21-16a.cfm.  The press release noted that the EEOC had last issued guidance about retaliation in 1998.  Since then, there have been some substantive developments in the case law.  Notably, in 2006, the Supreme Court issued its decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), which addressed what constitutes an adverse action for purposes of a claim of retaliation.  The decision held that for purposes of retaliation claims, adverse actions do not need to be “ultimate employment decisions.” It also contains one of my favorite sentences from a Supreme Court decision for its sheer simplicity, “Context matters.”  As the decision goes on to explain, a schedule change taken in retaliation may not be a big deal to every employee, but it can be a big deal to someone with school-age children.  Therefore, the context of each action alleged to be retaliatory matters.    

Now, ten years after this Supreme Court decision, the EEOC is looking to update its Enforcement Guidance.  Another interesting note from the press release is the massive increase in retaliation claims:

The percentage of retaliation charges has roughly doubled since 1998, making retaliation the most frequently alleged type of violation raised with EEOC. Nearly 43 percent of all private sector charges filed in fiscal year 2014 included retaliation claims. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation violations comprised 53 percent of all violations found in the federal sector in fiscal year 2015.

The 1998 guidance about retaliation claims was part of the EEOC Compliance Manual and was primarily geared towards investigators reviewing claims of private sector retaliation, though the same legal elements apply to both private sector and federal claims.  The proposed Enforcement Guidance, for which the EEOC now seeks comment, takes the format of other EEOC publications, including the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (available at http://www.eeoc.gov/policy/docs/accommodation.html), a document I refer clients and others to almost weekly. 

This proposed Enforcement Guidance on retaliation is thorough, coming in at 76 pages with 222 footnotes, and is well-organized.  Just as in the 1998 release, it starts out by laying out the elements of a retaliation claim, focusing on all the forms protected activity can take, and the broad view of coverage of adverse actions (as we discussed in last month’s newsletter article, https://feltg-stage-ada.stage3.estlandhosting.com/claims-of-retaliation-have-a-broader-view-of-coverage-than-discrimination-claims/).  It’s important to remember that employees are protected from retaliation for initiating an EEO complaint even if the claims being raised in the underlying claims do not have any merit. The Proposed Guidance also details some of the other forms of protected activity beyond just participating in and opposing protected activity, including “complaining about alleged discrimination against oneself or others, or threatening to complain; providing information in an employer’s internal investigation of an EEO matter; refusing to obey an order reasonably believed to be discriminatory; advising an employer on EEO compliance; resisting sexual advances or intervening to protect others; passive resistance (allowing others to express opposition); and requesting reasonable accommodation for disability or religion.”  Something I also find very useful in the proposed Enforcement Guidance is the inclusion of specific examples, which are sprinkled throughout the document.    

The proposed Enforcement Guidance also dedicates a section to the prohibition of employer interference with an employee’s exercise of ADA rights, includes a section on remedies available when an employee prevails on retaliation claims, as well as a section on best practices employers can adopt to reduce incidents of workplace retaliation.   

Public comments on the proposed Enforcement Guidance are due on February 24, 2016 and you can submit input through www.regulations.gov (Docket ID: EEOC-2016-0001). Sumner@FELTG.com

The “Gambler’s Fallacy” at Work in Civil Service Law

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By William Wiley

Pop Quiz: You have flipped a coin five times and it has come up five heads five times in a row. If you were to bet on the next flip, what would you pick: heads or tails?

A lot of people would pick tails, believing consciously or subconsciously that the fact that the coin has previously landed on heads several times somehow is evidence that the next flip is more likely to be tails. And when doing so, they would become victims of “The Gambler’s Fallacy.”  You see, there’s a tendency in humans to see patterns, to look for balance in an otherwise unbalanced world. The next time you’re in a big casino in Las Vegas [Note to self: a great location for an FELTG seminar!], look closely at the video screen next to the roulette wheel. When you do, you’ll see that a lot of casinos will track how many times red or black has come up in a row and display that number for all the future gamblers who might not otherwise bet on the spin of the wheel, but who start pulling out the Benjamins when they see that noir or rouge has shown itself five or six or ten times in a row.

And that’s why big casinos have a lot of your money; those guys paid attention during the first day of statistics while you were checking your Facebook page for the most recent updates by Justin Bieber.  Statistically speaking, the act of flipping a coin at this very moment results in a 50/50 chance of either side coming up, regardless of which sides have come up previously. The past does not control the future of a random event such as coin tossing or roulette wheel spinning.

But not so for the decisions of judges. In one recent study, investigators reviewed over 150,000 decisions by immigration judges in cases in which the individual appearing before the judge was seeking asylum. The results show the subconscious application of the Gambler’s Fallacy to those decisions by those judges. If the immediately previous case resulted in the judge granting asylum, the next case was about one percent less likely to result in an asylum grant. If two cases in a row resulted in a judge granting asylum, the judge was five percent less likely to grant asylum in the third case. Daniel Chen, Tobias J. Moskowitz, and Kelly Shue, “Decision-Making under the Gambler’s Fallacy: Evidence from Asylum Judges, Loan Officers, and Baseball Umpires,” Fama-Miller working paper, March 2015.

You see, judges have memories whereas coins do not. Judges know that they are hired to make decisions, and they subconsciously apply the Gambler’s Fallacy to their decision-making, working to bring order to an otherwise disordered world. If some applicants deserve asylum, then there must be others who do not, or we wouldn’t need judges to make the distinction.

I first ran into this phenomenon way back in 1992. The Board had been issuing decisions for over ten years by that time, ironing out word by word what the “new” Civil Service Reform Act was directing agencies to do when firing bad employees. Upon reviewing MSPB’s annual reports for each of those preceding years, I noted that the Board was upholding removals at the rate of about 78% each year.  In an article I wrote (for a lesser newsletter) that year, I opined that this trend didn’t make sense. Yes, during the early ’80s when the CSRA was initially being interpreted, you’d expect agencies to be making mistakes. There were a lot of new terms and procedures to be understood, and it’s only through trial and error that terms and procedures come to have a definitive definition in a business based on adjudicatory oversight such as our civil service.  My surprise was that the appellate loss rate for agency removals did not drop each year during the decade as we all came to learn what the CSRA was all about.

And my surprise has not diminished in the quarter-century since that original epiphany. In this past year, and in fact every year since that time, the agency success rate on appeal hovers right around 78%. Why has it not improved since that time? Why are we no better at removing bad employees today that we were back in the early ’80s when the Board’s decisions could be read from first to last over a weekend? And if you’re a real purest, why does an agency EVER lose a case on appeal? Have any of you readers ever been involved in a case in which the agency fired someone with full knowledge that it had somehow removed the employee incorrectly?

Could it be … Gambler’s Fallacy? All labor relations specialists know that it is black letter law in the arbitration community that an arbitrator will not stay in the arbitration business very long if she always holds for management regardless of the merits of the cases brought to her. Is it possible that the Board and its judges are subconsciously prone to sometimes set aside agency removals because if it ALWAYS upheld the agency, it would be seen as not doing its job? It only makes sense that if some agency removals should be upheld, others should not or otherwise we wouldn’t need judges.

And it only makes sense that if a coin has come up heads five times in a row, the next flip is more likely to result in a tail. Of course, that’s undeniably wrong, but it still makes sense. As does a flat Earth, ghosts, and lucky charms.

There is a treatment for Gambler’s Fallacy among judges that has been shown to reduce the effects of its bias:

  1. Publicly acknowledge that the bias exists, thereby encouraging the judge not to succumb to it.
  2. Assign judges different types of cases in a dispersed order, thereby reducing the carry-over effect from one removal case to the next.
  3. Periodically review decisions to evaluate if the Gambler’s Fallacy is having an effect on decision-making and provide feedback to the judges as to how they are doing relative to the bias.

We are starting to learn that a LOT of our biases are subconscious, and that we have them even though in our hearts we believe we do not (yeah, I’m looking at you, Presidential Candidates). MSPB and EEOC would do the country a service by assessing their own judges for the tendency to give in to the Fallacy bias and to take steps to reduce it. Wiley@FELTG.com

OFO Case Law Snapshot: Three Procedural Dismissals Addressed in One Day

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By Deryn Sumner

As 2016 continues to truck along, let’s check in on the latest (or the most recent Westlaw has released) from the EEOC’s Office of Federal Operations.  On one day in particular, January 8, 2016, the EEOC addressed three dismissals of formal complaints and remanded two out of the three of them for processing.  Given the length of time cases can take to be remanded for further processing, improper dismissals can be dangerous for agencies.  Investigations taking place after a several-year delay can reveal that documents were destroyed and recollections are gone, which can impact an agency’s ability to sufficiently articulate legitimate, non-discriminatory responses to allegations.  So protect your agency by getting it right the first time.   

First, in Clemente M. v. Department of Homeland Security, Appeal No. 0120152854 (January 8, 2016), the agency dismissed a formal complaint for being filed one day beyond the fifteen-day time limit pursuant to 29 C.F.R. 1614.107(a)(2).  The complainant appealed and admitted that he did file his complaint one day late, but requested that the delay be excused.  The complainant proffered that “due to a transmission error, he had lost the initial draft complaint form that had been sent to him and that he was unable to receive and sign a new complaint form and transmit it by email to the Agency until the day after the formal complaint was due.” The Commission found there was adequate justification and no prejudice to the agency because of this slight delay, and remanded the complaint for investigation.

Next, in Ashlee P. v. Department of Defense, Appeal No. 0120152362 (January 8, 2016), the Commission addressed the agency’s dismissal of a complaint filed by a guidance counselor for an overseas elementary school.  The complainant filed a formal complaint alleging discrimination based on race, sex, and reprisal when she received a letter of caution and was subjected to harassment, including five articulated incidents.  The agency dismissed the formal complaint alleging that the complainant did not respond to additional requests for information and further alleged that the complainant “failed to make ‘good faith’ effort to cooperate in the pre-complaint counseling process by intentionally withholding requested information in order to reach appellate review before the Commission more quickly.”  Sound like an accusation from someone unaware of the glacial pace that the Office of Federal Operations operates at.  Despite the agency’s efforts, the Commission found that although the agency asserted that the complainant did not present her claims to the EEO counselor, the EEO counselor’s report reflected that she provided sufficient information to identify the events and actions on which her claims were based, as well as the identity of the responsible management officials, and the timeframes at issue.  This was sufficient for the agency to accept the claims for investigation and conduct an investigation.  The Commission remanded the complaint for such an investigation.      

And finally in Myrna S. v. Social Security Administration, Appeal No. 0120142595 (January 8, 2016), the Commission addressed the complainant’s argument that the agency’s dismissal of her formal complaint for untimely EEO contact should be reversed because she had been hospitalized during the 45-day timeframe.  The Commission disagreed, and took a careful look at the timeframe at issue.  The complainant filed a formal complaint on May 13, 2014 alleging her first-line supervisor subjected her to harassment when they engaged in an affair from August to December 2011.  The agency dismissed the formal complaint as the complainant did not contact an EEO counselor until years later on March 16, 2014.  The complainant argued on appeal that she did not contact an EEO counselor within the 45-day timeframe because she suffered from anxiety, depression, and was hospitalized.  She also claimed she forgot about the EEO training she received in 2010, which would have included information about the 45-day timeframe.  The agency opposed the appeal by arguing that EEO posters including this timeframe were prominently displayed in the complainant’s office. The Commission reviewed the time period in question and noted that the documentation the complainant submitted about her hospitalizations revealed she was in the hospital for approximately 18 days, between January 2012 and March 2014.  The Commission found that the complainant did not demonstrate she was so incapacitated during the relevant, several-year timeframe so as to excuse her untimely EEO contact.  The Commission affirmed the final decision dismissing the formal complaint.   Sumner@FELTG.com

Discipline is Different in a Unionized Environment

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By William Wiley

So you think you know how to discipline an employee, do you? You’ve read the law, the regulations, and your agency’s policies regarding misconduct. You’re familiar with the requirements of the Merit Systems Protection Board. If you work for an agency and you’ve been to our FELTG seminars, you know you need to prove by a preponderance of the evidence the Five Elements of Discipline to defend an adverse action based on misconduct (and if you work for the union, you know to make sure these are present):

  1. There has to be a rule (we define “misconduct” as violation of a rule).
  2. The employee knows the rule (you can’t enforce secret rules).
  3. The employee broke the rule.
  4. The penalty is reasonable (Douglas Factor analysis).
  5. The agency provided due process (the Deciding Official considered only the proposal & response).

If these concepts are unfamiliar to you, without untoward delay, PLEASE get yourself to some training. Because if you don’t grasp this fundamental concept of the Five Elements, you cannot do you job. Seriously. The next opportunity you have for open-enrollment training with FELTG on this topic is March 7 through 11 in Washington, DC. Do it now: https://feltg-stage-ada.stage3.estlandhosting.com/event/mspb-law-week/?instance_id=107 .

These elements are fundamental to every disciplinary adverse action in government. However, if the employee is in a collective bargaining unit, the agency has other requirements that have to be met.

First, the experienced practitioner will look to the collective bargaining agreement (CBA) to see if there are any procedural requirements to implementing discipline within the bargaining unit (BU). For example, the CBA may require notice to the union of any proposed discipline. Or, there may be a provision of the CBA that extends the notice period beyond the regulatory minimums. When working with BU employees, practitioners on both sides need to be intimately familiar with the CBA and any sidebar agreements relative to it (New to labor relations? Come learn this stuff in our next labor law seminar, FLRA Law Week, May 2-6, Dupont Circle, DC, https://feltg-stage-ada.stage3.estlandhosting.com/event/flra-law-week/?instance_id=103 ).

Next, both agencies and unions need to be prepared for a case of discipline to be grieved and thereby taken to arbitration. Arbitrators are hired judges who will apply the law and the CBA to the facts of an adverse action case and decide whether the discipline was administered for “just cause,” a concept similar to MSPB’s review, but significantly different.

For example, there is no principle in MSPB law that requires an agency to investigate prior to discipline. The only requirement is that the agency has evidence to support the discipline. Arbitrators, on the other hand, look to principles of “industrial due process”. In doing so, they look to sources of arbitration authority other than the CBA. “Just cause” and industrial due process include the requirement that management conduct a fair investigation prior to assessing discipline, Elkouri & Elkouri. One common element of this requirement is that the employee and witnesses are interviewed prior to making the decision to take the disciplinary action. Brand & Biren, Discipline and Discharge in Arbitration, AFGE v. USDA, Fed. Arbn. 0-AR-5160 (2015), CBP & Nat. Border Pat. Council, Fed. Arb. 0-AR-5109 (2105).

So you fire a BU employee without interviewing the miscreant. You concluded you didn’t need to because you had him clearly on video loading the stolen computers into the trunk of his car, then blasting through the gate with guns drawn and singing “God Bless America” while simultaneously asserting his Constitutional rights to seize federal property.

Appeal to MSPB:  Removal sustained.

Grieve to an Arbitrator:  What? No interview with the employee? A violation of industrial due process! Removal set aside (at least possibly, with some arbitrators).

Finally, you owe it to your client to explain how arbitration works. MSPB judges can stay employed for years without ever reversing or mitigation an agency’s adverse action. Their performance standards do not require any particular distribution of outcomes in their decisions. They are hired by the Board, a neutral agency intent on applying the law, however the law turns out.

On the other hand, arbitrators are hired by the parties: the union and the agency. If an arbitrator always holds for the agency and never mitigates or reverses an adverse action, do you think the union is going to agree to employee that arbitrator in the future? [Insert your own answer in this space.] So expect to see some highly attenuated, questionable legal rationales when it comes to the assessment of an agency’s burden and the elements of proof in an arbitration award. The arbitrator’s role is different from that of an MSPB judge. Not necessarily bad; just different. Wiley@FELTG.com

Claims of Retaliation Have a Broader View of Coverage than Discrimination Claims

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By Deryn Sumner

Although I do represent a few federal agencies, I consider myself first and foremost an advocate for employees. But even I, upon reviewing a formal complaint from an employee, will sometimes think to myself, “How on earth can someone possibly feel aggrieved by this minor workplace slight?” And of course, under the Diaz standard set forth in Diaz v. Dep’t of Air Force, EEOC Appeal No. 05931049 (April 21, 1994), only those claims that show a harm or loss that effect a term, condition, or privilege of employment are considered adverse actions. However, this just applies to claims of discrimination. Remember that the Commission views claims of retaliation under a “broad view of coverage” and claims that might not pass muster as claims of discrimination could be found to state claims of retaliation. The Commission often cites to Section 8 of the EEOC Compliance Manual, first published in 1998 and available at http://www.eeoc.gov/policy/docs/retal.html, in support of this position. Although the terminology used in the Compliance Manual relates to the Commission’s role in investigating private sector charges of discrimination and litigating claims in federal court, the same standard – that adverse actions do not need to be “ultimate employment actions” or materially affect the terms or conditions of employment to constitute retaliation – applies to the federal sector.

There are key illustrations of this in the Commission’s regulations and case law. For example, under 29 C.F.R. 1614.107(a)(5), proposals to take a personnel action do not state a claim of discrimination, but they can state a claim of retaliation.

The Commission has held that being subject to an internal investigation does not state a claim of discrimination, as it found in Heard v. Dep’t of Justice, EEOC Appeal No. 0120092680 (August 27, 2009). However, the same incident can state a claim of retaliation, as the Commission found recently in Bryant F. v. Dep’t of Interior, EEOC Appeal No. 0120121828 (December 11, 2015). Noting prior cases where similar claims did not constitute adverse actions for purposes of establishing a claim of discrimination, including Heard, the Commission noted that retaliation claims “are not restricted to those which affect a term or condition of employment” but rather anything “that is reasonably likely to deter protected activity.”

In Tamara G. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120112387 (December 3, 2015), the Commission held that receiving a rating of “highly successful” could reasonably deter someone from engaging in protected activity. The Commission found that even if the rating is positive, the employee’s receipt of a lower evaluation could “create a chilling effect on an employee engaging in protected activity in the future.”

So remember, when looking at whether allegations state a claim, look at whether the allegations are being raised under a theory of retaliation and be sure to apply the correct “broader” standard. Sumner@FELTG.com

Discipline in the Public View – Credit Card Misuse V

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By Barbara Haga

Now that the holidays are over and credit card bills are arriving in mailboxes around the country, it seems like a good time to return to looking at credit card issues in Federal agencies.

“Saving Federal Dollars” Closer to Reality

I mentioned in the first credit card misuse column published in August 2015 that another bill designed to ferret out misuse in the Federal government had been introduced in Congress. That bill, Saving Federal Dollars Through Better Use of Government Purchase and Travel Cards Act of 2015 (S.1616), was passed by the Senate on December 16, 2015. It’s probably not exactly what most Federal employees would have included on their lists for Santa, but the Senate delivered something new for agencies to play with anyway.

This version of the bill is different than what was originally proposed. The original bill would have set up a specific office in GSA to manage these efforts but that was eliminated; however, the Senate version charges GSA with working with OMB on creating data analytics for managing both travel and purchase card programs across government.  Agencies will have a requirement to review questionable transaction reports issued by credit card companies. There would be an interagency group that would meet to look at these matters and, of course, there are required reports to Congress a year after enactment for agencies, too.

Purchase Cards

While most card-misuse cases that come across the average Employee Relations practitioner’s desk will involve an employee’s travel card, purchase cards can also be misused. Congress has that in their sights since the “Saving Federal Dollars” specifically covers both types of cards. The case of Sedita v. Department of the Army (1998) is a case in point.

Sedita was removed from the position of Facility Management Officer, GS-13 in 1998. His job required him to monitor the work of contractors and to certify to work performance so that payments could be issued for work completed. He was also responsible for purchasing items for facilities under his care using a government commercial credit card. The limit for purchases on the card was $2500 at that time. The relevant guidance on the use of the card specifically prohibited splitting large purchases into smaller purchases to circumvent those monetary limitations.

Sedita’s removal was based on charges related to both aspects of his job, but those relevant here are related to his use of his credit card to split purchases. One specification covered his use of the card to purchase and install one dehumidifier each for sixteen different agency locations for a total amount of $10,944.00. He originally submitted the request to the procurement office to contract for the purchase and installation of sixteen dehumidifiers, but it was near the end of the fiscal year and procurement office responded that there was not enough time to process the contract before the end of the year. Sedita alleged that he was advised to split the order by the Contract Specialist, but no evidence was produced on that point. Sedita purchased the same items and services from the same contractor and thus violated the credit card processing Standard Operating Procedure.

Another specification involved more work for the same contractor. That job involved work to convert a large office into four smaller ones. The total value of the work was $7,920. Sedita purchased the work with four separate credit card purchases. He contended that the installation of each wall and door was a separate job for which a separate invoice was prepared. The CAJ did not accept that explanation, finding that Sedita knew or should have known about this limitation because he was an experienced Facility Management Officer. It was noted that he might have been concerned that the funds for this work would have been lost if unused before the end of the fiscal year, but that did not excuse his violation of the purchase card procedures.

Travel Cards

Have you ever pulled out the wrong credit card and used your government card for a personal purchase? You don’t really have to answer that. Others have said they did, and indeed it has come up in more than one credit card misuse case. One was Callaway v. DoD, DC-0752-13-0004-I-1 (2013), which I covered in the October newsletter.

Another employee testified that she fell victim to this same failure to distinguish which card she was actually using in McFall and USDA, APHIS, Plant Protection and Quarantine, Federal Arbitration 008-50341, 108 LRP 37192 (2008). McFall, a Plant Health Safeguarding Specialist, was suspended for 14 days for misuse of the government travel card. She stated that she normally kept her travel card in the office safe but for some unknown reason had not returned it there after a prior trip. She used her government card to purchase four meals while not on travel and also purchased several items at Walmart using the card. The total value of the charges was less than $500.

She also argued that she had not had adequate training on use of the credit card and was not aware of a zero tolerance policy on misuse.

Arbitrator Hecht sustained the suspension. He concluded that McFall’s failure to take the usual precautions to safeguard the government card and separate it from her personal card more likely contributed to the misuse than any lack of training. He found her excuse of confusing cards possible on one occasion, but explained that it was her responsibility to ensure that would not happen on four occasions.

One thing that caught my eye in this decision was the guidance introduced in the record for dealing with misuse situations. The decision quotes OMB Circular A-123 indicating that instances of misuse should be included in performance evaluations. The Circular was revised in January 2009, but maintains the same language (OMB Circular A-123, Appendix B, Attachment 5). It states:

When initiating administrative or disciplinary actions for card misuse and/or for instances when account delinquency is discovered, charge card managers should, 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.

This list is such a mixed up jumble of things I wish they had never written down that I don’t know where to start. So, we will pick up here next month! Haga@FELTG.com

[Editor’s Note: OMB may know numbers, but they don’t know the federal performance appraisal program. If you are going to consider card misuse when assigning the employee’s annual performance appraisal, you’d darned sure better have something about using cards when you established the original performance plan. Otherwise, you can’t just insert it at the end of the appraisal year because OMB thought it was a good idea. And if you include it in the original performance plan, keep in mind that you are taking something that normally would be a MISCONDUCT issue and incorporating it into a possible PERFORMANCE case. There’s nothing that specifically prohibits that, but some agencies avoid mixing misconduct with performance for policy reasons.]

Sorry, but Your Illegal Agency Accommodation Policy Doesn’t Supersede the Law

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By Deborah Hopkins

Can an agency policy overwrite existing law, if it’s specialized to a very small group of employees? In a word, nope. This article provides a review of reasonable accommodation requirements, courtesy of TSA. Two issues are central to this case: (1) reasonable accommodation requirements for individuals with disabilities, and (2) internal agency policies that conflict with the law.

In 2011, TSA subjected an employee to discrimination based on disability because it missed a crucial step in the required accommodation process under the Rehabilitation Act. Here’s a quick recap of the facts in Marielle L. v. TSA, EEOC No. 0720140024 (October 22, 2015):

  • A Transportation Security Officer (TSO) had a medical condition and made the agency aware of the condition
  • The medical condition meant that she could not lift 70 lbs, which was a requirement for the position as per the Aviation and Transportation Security Act (ATSA)
  • TSA declared that the employee was not qualified to do the job and no accommodation would allow her to lift 70 lbs; the employee agreed
  • Rather than consider reassignment, TSA gave the employee an application for retirement
  • The employee didn’t want to retire; leadership told her to request LWOP or else she’d be placed on AWOL
  • Employee was eventually terminated for physical inability to perform

The agency missed an important, legally-required step in the accommodation process when they did not consider available reassignments. Let’s review the requirements.

When making an accommodation request, an employee must show that (1) She is an individual with a disability, (2) She is a qualified individual with a disability, and (3) The Agency failed to provide a reasonable accommodation. From there, the agency is required to accommodate the employee unless doing so would cause an undue hardship, or no accommodation is available.

But, it doesn’t stop there. If the agency cannot provide a reasonable accommodation or no accommodation is available for that job, the agency must next consider reassignment as an accommodation – and this is where TSA messed up. The agency must look for a vacant, funded position for which the employee is qualified, and not just within the agency but all the way up to the Department level, which in this case would mean DHS-wide. If no vacant, funded position is available at the employee’s grade level the agency must look for lower-graded positions for which the employee is qualified. Once these options have been exhausted and no position is available, only then may the agency remove the employee for inability to perform.

Here’s where issue 1 (consider reassignment) meets issue 2 (internal policy that violates the law). The agency argued that they could remove the employee because the ATSA specifies that if an employee does not meet the requirements of the TSO position, that employee may be removed. The ATSA also specified that the TSO who cannot perform is not eligible for accommodation, including reassignment. The AJ told the agency that internal policy did not supersede the Rehabilitation Act requirement of considering reassignment as an accommodation and that the policy be modified to reflect the law. The agency argued that the AJ’s authority did not include a requirement that TSA change a national policy, but the EEOC disagreed, because changing the policy would simply reflect “the obligation [TSA] already has – to offer a reasonable accommodation in the form of reassignment, when appropriate, to TSOs.”

There you have it. Internal policies cannot override the law. Therefore, the agency had to pay out compensatory damages, attorney fees and costs for discriminating against the employee.

This stuff is important and even though it may seem basic, it’s clear from the case above that agencies get it wrong because they don’t know the law. We teach a whole day on Reasonable Accommodation Under the ADA and Rehabilitation Act during Absence & Medical Issues Week, next held February 1-5 in Washington, DC. Or, bring FELTG onsite and we’ll teach you all about it on your home field. You can’t afford to make a mistake like this! Hopkins@FELTG.com

Do Not Put Prior Poor Performance Examples in the PIP Initiation Letter

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By William Wiley

Questions out the wazoo. And this one goes to the heart of an issue that when I was a puppy, I went the other way. Now that I am older (and some would say wiser, but what do they know), I have found a better way. As for the question and then our answer:

Good morning FELTG Spiritual Leaders,

I have an agency that wants us to draft a very general PIP Notice. The agency does not want us to include examples of the employee’s deficiencies. While I understand there is nothing against this method in the CFR, I have concerns that the PIP will not be strong enough if the agency decides to take a performance based action and remove the employee (if the employee fails the PIP). Also, while I was researching on cyberFeds, I found contradicting guidance. Do you have any thoughts over which process is better? I really appreciate your time and any feedback you may have for me.

Dear Concerned Reader, Trying to do the Right Thing:-

Very nice to hear from you. As for your question, we teach in our MSPB Law Week seminar NOT to include in the initiation letter the incidents of prior unacceptable performance that caused the PIP to be instituted. Here’s why:

  1. Prior incidents aren’t required and provide no legal benefit. As you may have picked up from our newsletter articles over the years, we believe strongly that the best discipline and performance letters are the ones that say the least. That’s because the more you put in:
    1. The more chance you have to say something that is incorrect, and
    2. The more you give the employee to attack on appeal.
  2. If you put in examples of prior poor performance, the employee isn’t going to believe them. Or, the employee is going to be defensive and feel that he’s being treated unfairly. This is a common human reaction that we teach about called the Dunning-Krueger Effect (or “optimism bias”). Therefore, the employee is going to want to challenge each of the incidents of “alleged” poor performance, either through the grievance procedure or EEO (although as you no doubt know, even though an employee usually cannot file an EEO complaint about a PIP initiation letter, some agency EEO offices accept the initial complaints anyway). This challenge is bad because:
    1. It causes the supervisor extra work, and most importantly,
    2. It distracts the poor employee so that she puts her energies into attacking the PIP when she needs to be putting her energies into working her tail off during the PIP. You actually disadvantage the employee by listing incidents of poor performance in the PIP initiation letter.
  3. MSPB has never ever held a 432 removal to be any stronger because prior poor performance was included in the PIP letter. Ever.

In fact, MSPB through its report-producing arm has listed the following as the components of a good PIP:

A good PIP typically will: State in clear detail what performance is expected from the employee and how it will be measured. Specify the assistance the agency will provide (on-the-job training, formal class training, mentoring by a more successful employee, etc.). Specify a person who is responsible for helping the employee through the performance improvement period and indicate how often this person will meet with the employee. (The person tasked with guiding the employee is often the supervisor, but it could be a team leader, co-worker, or other appropriate person.) Explain to the employee that if the employee has questions or does not understand something, the employee has the responsibility to notify a particular person (often the supervisor) and ask for help. State how long the PIP will remain in effect. State the possible consequences if the employee’s performance does not improve. http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=445841&version=446988&application=ACROBAT, p.8.

Notice that the Board does not include a listing of prior poor performance as a component of a good typical PIP. Neither do we here at old FELTG.

However, experience teaches that even though an employee usually cannot challenge the initiation of a PIP, he can sometimes challenge it by claiming the PIP is an incidence of reprisal (whistleblowing or prior-EEO-activity) or part of a continuing series of discriminatory events. Therefore, our advice to supervisors in our supervisory training is to contemporaneously draft a narrative of the incidents of unacceptable performance that precede and warrant the PIP, but not give it to the employee when the PIP is issued. Stick it in a file somewhere. Then, if a reprisal investigator comes knocking wanting to know why the PIP was initiated, the defense is in the file.

Hope this helps. If you need more, let us know. PIPs are fun and easy if you know what you’re doing, and now you do. Wiley@FELTG.com

Tips for Drafting EEO Settlement Agreements

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By Deryn Sumner

So after months (okay, or maybe hours) of negotiation, you’ve agreed on terms and reached a settlement in principle to resolve an EEO complaint? Great! Now comes the next hurdle: reducing the terms to writing and getting everyone to sign off on the darn thing so the Administrative Judge will dismiss the case and you can get it off of your desk. Here are some tips to make this next stage as pain-free as possible.

First, if you represent an agency, you likely already have boilerplate language it uses in every settlement agreement. I like to have a draft of that boilerplate agreement already prepared with the case caption on top and as many blanks filled in besides the actual terms before going into a mediation, settlement conference, or even the hearing. Remember, the vast majority of cases settle instead of being decided on the merits so there’s a good chance such preparation will come in handy at some point in the litigation. While you work on drafting the language for the specific terms agreed upon, give a copy of an agreement with the rest of the language to the complainant and his or her representative to review. It saves everyone time and helps you focus on how best to draft the language of the terms, while someone else is explaining what “OWBPA” language is the complainant. (Speaking of the OWBPA, it’s a good practice to put it in every agreement where the complainant is 40 years old or older, regardless of whether age has been raised as a basis). [Editor’s Note: That’s the “Older Workers Benefit Protection Act” for you newbie’s out there. That law is based on the assumption that if you are 40 years old or older, you don’t think too fast. ]

Include a reference to the requirements at 29 C.F.R. 1614.504 in the agreement itself so the complainant knows what to do if there’s a problem with compliance. To make everyone’s lives a little easier,

To avoid problems with compliance, think through each of the things both parties are agreeing to do under the settlement agreement with “who, what, when, and how” as your guide. To whom does the Complainant need to submit documentation of attorneys’ fees? What exactly is each party agreeing to do? (Neutral references can mean many different things, and don’t forget to require the Complainant to actually withdraw his or her complaint as a term). When is the payment going to be made? How should the Agency distribute any payments between the Complainant and his or her attorney? If someone not involved in the negotiations were to pick up this agreement and make sure everything was completed, how would they know that was the case? Remember that everything the parties intend to happen should be contained within the four corners of the agreement and should not require looking at any other documents to determine the intent of the parties. If there are any outside documents included as part of the terms, such as a written letter of reference or an SF-50, reference it and include it as an attachment to the agreement.

And finally, I’m sure none of our esteemed FELTG newsletter recipients would make such a mistake, but make sure the agreement actually has consideration for the Complainant in exchange for withdrawing his or her claims. No, agreeing to treat employees with “respect” or giving them an accommodation they are otherwise entitled to is not valid consideration. It’s something every employee is otherwise entitled to receive in the workplace. Sumner@FELTG.com

Acronyms Matter When it Comes to Veterans’ Rights

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By William Wiley

Everyone knows that you can’t mistreat military veterans in the federal workplace because of their military duty. In fact, Congress has passed two separate and independent laws somewhat recently to protect the rights of veterans, and there’s an important difference between the two. First, the laws, in abbreviated form:

USERRA (Uniformed Services Employment and Reemployment Rights Act): Prohibits an agency from discriminating against an individual because of that individual’s status as a military veteran relative to any benefit of employment.

VEOA (Veterans Employment Opportunities Act of 1998): Prohibits an agency from violating a veteran’s rights to preference over non-veterans in certain hiring and RIF situations.

Sometimes I see practitioners sort of lump these together into a no-veteran-discrimination concept, and I can understand that. If an agency abides by the merit systems principles and regulations in everything it does, it will automatically not violate either USERRA or VEOA. However, there is an important difference between the two protections if the employee chooses to push back against an agency decision by filing an appeal with MSPB. Let’s see if you know it.

Pop Quiz No. 1: What should an agency representative do if an employee files a USERRA appeal?

Pop Quiz No. 2: What should an agency representative do if an employee files a VEOA appeal?

[Pause for you to formulate you answers. Keep in mind, you longer remember pop quiz questions you miss than those you get right. I’m still carrying with me a wrong answer I gave to a pop quiz question in physics class in high school, in case anyone needs to know the name of the force that keeps a satellite in orbit.]

Pop Answer No. 1: Prepare for a hearing. An individual who brings a USERRA appeal has an unconditional right to a hearing on the merits. Kirkendall v. Army, 479 F.3d 830 (Fed. Cir. 2007).

Pop Answer No. 2: Review the appellant’s appeal to determine if there are any material allegations with which you disagree. If none, file a Motion for Summary Judgment with the judge. The Board has the authority to decide a VEOA claim on the merits, without a hearing, when there is no genuine dispute of material fact and one party must prevail as a matter of law. Davis v. DoD, 105 MSPR 604 (2007).

The summary judgment motion is a standard tool in the world of EEOC law. As most MSPB appeals provide for an automatic right to a hearing if the appellant requests one, we don’t often associate that standard tool with MSPB. However, as no agency representative in government actually wants to go to a hearing if she doesn’t have to, keep in mind this exception to MSPB’s pro-hearing rule. If confronted with a strictly VEOA claim in an appeal to the Board, review those factual claims closely and then file for summary judgment if none are in dispute. Wiley@FELTG.com