Critical Case Update: Unacceptable Performance Removals in 2023 and Beyond

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By William Wiley, April 21, 2023

For more than 40 years, the procedures a supervisor should use when confronted with a non-performing employee have been well-established. The supervisor had to:

  1. Give the employee attainable performance standards (objectives, expectations, whatever you want to call them, usually in an annual performance plan),
  2. Allow the employee a reasonable period of time to work under those standards to get used to them (hardly ever more than a couple of months), then,
  3. Initiate a Performance Improvement Plan memo to tell the employee that he is performing unacceptably, specify that he has 30 days or so to improve, and tell the employee exactly what objectives he has to accomplish during that time to keep his job.

If the employee failed to accomplish the PIP objectives, the supervisor was then obligated by law to remove the employee from the position. Removal from the position could be through reassignment, demotion, or firing. Choosing among those three options was left to the unreviewable discretion of the supervisor. To be sustained on appeal, the agency would have to prove by substantial evidence that the employee’s performance during the PIP was unacceptable.

PRO HINT: Here at FELTG, we have always taught that the supervisor should not just reassign or propose to demote the employee at the end of a failed PIP, but instead confront the employee with the reality that he could be terminated. Then, the supervisor should offer the employee the option of voluntarily requesting a demotion or reassignment (if those options are available), thereby avoiding the need for the supervisor to defend the action on appeal. If the employee were to decline the offer, the supervisor still retained all three options. There would be nothing to lose and much to gain by inviting the employee to initiate a voluntary action.

So why is 2023 an important time to step back and consider where we are with this procedure if it has been around for so long? Well, it’s important because we have a somewhat-new precedential court decision that has added a fourth step to the original procedure and two relatively new Board members who are applying that precedence for the first time to a number of cases.

First, the court-ordered added step. In Santos v. NASA, 990 F.3d 1355 (Fed. Cir. 2021), the court held for the first time that the 1978 law that created the unacceptable performance removal procedure actually required four steps, not three. According to the court, the procedures a supervisor should use when confronted with a non-performing employee are:

  1. Give the employee attainable performance standards (objectives, expectations, whatever you want to call them, usually in an annual performance plan),
  2. Allow the employee a reasonable time to work under those standards to get used to them (hardly ever more than a couple of months),
  3. Collect evidence that the employee is failing one or more specific performance standards, then,
  4. Initiate a Performance Improvement Plan memo to tell the employee that he is performing unacceptably, specify that he has 30 days or so to improve, and tell the employee exactly what objectives he has to accomplish during that time to keep his job.

Santos effectively doubled the evidentiary burden that agencies have when defending the removal of a non-performing employee. Pre-Santos, the supervisor needed only to present proof of unacceptable performance that occurred during the PIP. Post-Santos, the supervisor now has to prove incidents of unacceptable performance BOTH pre- and post-PIP initiation. Put another way, before the Santos decision, on appeal the supervisor did not have to defend initiation of the PIP with examples of poor performance. Today, now that we have Santos, the agency’s case file will need documentation to prove that the employee performed unacceptably prior to PIP initiation.

Although Santos was issued two years ago, we have only recently had Board members in place at MSPB to interpret exactly how the new Santos requirement is to be implemented at the front-line level. Now that we’ve had a few post-Santos Board opinions, we can say with a moderate degree of confidence what supervisors should be doing to prepare to defend their post-PIP removal decisions.

We can take a fair amount of instruction from the recent non-precedential order Gwynn v. Treasury, MSPB Docket No. DC-0432-16-0865-I-1 (Feb. 28, 2023) (NP). The facts of the case are in bold below, followed by our FELTG assessment of those facts:

  • In the 10-12 months preceding the initiation of a PIP, the supervisor issued the employee eight counseling memoranda. As far as we can tell, there is no requirement to notify the employee of these pre-PIP failures prior to initiation of the PIP to satisfy Santos. In addition, there’s no requirement that any unacceptable performance notifications be in the form of a counseling memorandum. The proof will have to be in the agency file should the employee fail the PIP and the supervisor subsequently proposes to remove the employee. But it’s good to know these memoranda are acceptable justification, if you already have them in the file.
  • The supervisor issued the employee a poor midyear progress review and simultaneously placed the employee on a 60-day PIP. The supervisor did not need to issue a midyear progress review to justify the initiation of a PIP. The previous eight memoranda are enough. As we have taught for years, the better practice is to NOT issue a midyear review (or annual summary performance rating) prior to initiating a PIP. By doing so, the supervisor has now given the employee a discrete act to challenge through the EEO complaint process. And that’s exactly what this employee did, thereby occupying the agency with an EEO complaint that might not be resolved for years into the future. POP QUIZ! Now that this employee has been removed from his position for failure of the PIP, and has lost his appeal to MSPB, what happens if EEOC eventually finds that the EEO complaint related to the poor midyear progress review was illegally discriminatory? ANSWER: We don’t know, but it’s probably not good.
  • The supervisor initiated a 60-day PIP. After a few weeks on the PIP, the employee underwent emergency surgery and was on approved leave for medical reasons for five months. Once the employee returned to duty, the supervisor allowed the employee two to three weeks to get back up to speed, then re-initiated the PIP for a 30-day period. Had the PIP initially been established for a shorter period, less than 60 days, the supervisor might have been able to complete his evaluation of the employee’s performance prior to the need for sick leave. Be that as it may, the supervisor was fully within his rights to continue with the evaluation of the employee’s performance with the remainder of the PIP after the medical issue was resolved. In other words, he did not “lose the PIP” because of the medical absence. He did not have to start over.
  • The supervisor denied the employee’s reasonable accommodation request to telecommute based on his unacceptable performance and the on-going PIP. This is a valuable point. Unacceptable performance can be a valid reason to deny certain disability accommodation requests as well as being a valid reason to deny requests for annual leave or LWOP. But, be sure to follow the RA process every time.
  • The supervisor used 13 examples of unacceptable performance to justify the PIP, all drawn from the eight counseling memos and the midyear review. This is the heart of the new Santos requirement. On appeal, the employee attempted to rebut the facts and the conclusions put forward for each of the 13 pre-PIP examples, and the Board evaluated and ruled on the evidence supporting all 13. Of the 13, the Board held that 11 supported a conclusion that the appellant had performed unacceptably and 2 did not. A difficult unanswered question is what if only 9 out of 13 were found to be valid examples, would the PIP still have been justified? What if it was 6 out of 13? Or only 4?

After all of this evidence and analysis regarding pre-PIP performance, MSPB finally got around to evaluating the credibility of the testimony and documents relative to the employee’s performance during the PIP. It concluded that the employee failed to achieve “numerous” PIP objectives. Therefore, the agency’s removal (demotion) action was affirmed.

We now know, without a doubt, that an agency that removes a non-performing employee using 5 USC 432 procedures will have to prove by substantial evidence that the employee was performing unacceptably both pre-PIP and during or after the PIP. As for the pre-PIP failures to meet objectives, we believe Santos is satisfied by informing the employee of these specific incidents of unacceptable performance if they are incorporated into the PIP initiation memo. Such notice would establish that the supervisor ”warned the appellant of the inadequacies in her performance during the appraisal period and gave the employee an adequate opportunity to demonstrate acceptable performance.” Santos, 990 F.3d at 1360-61.

There is one procedural aspect of this “warning” that is unclear. When must the agency come forward with its proof of the unacceptable pre-PIP performance? Is it obligated to present this evidence as an attachment to the PIP initiation memo given to the employee? If so, Santos doesn’t say that.

If the employee fails the PIP and the supervisor proposes the employee’s removal, should proof of the pre-PIP failures be attached to the proposal notice? It would seem necessary to do so to provide the employee a chance to defend himself prior to a decision being made regarding the proposal, e.g., to provide due process. However, in its remand orders implementing Santos, the Board says nothing about a due process concern that the agency did not provide the pre-PIP proof to the employee before making its decision. See Lee v. DVA, 2022 MSPB 11 (2022), paragraph 17: “On remand, the administrative judge shall accept evidence and argument on whether the agency proved by substantial evidence that the appellant’s pre-PIP performance was unacceptable.”

Taking all these recent lessons together, our admittedly legally-conservative FELTG advice to Federal employment law practitioners has changed. When approached by a supervisor who has a non-performing employee, the supervisor should be advised to:

  1. Make sure that the employee has been given performance standards (with critical elements identified) and has had at least a couple of months to get used to them.
  2. Collect evidence of mistakes the employee has made recently that demonstrate he is performing unacceptably under at least one of his critical elements.
  3. Incorporate reference to these mistakes in the PIP initiation memo. The supervisor should retain evidence of the mistakes but does not have to provide that evidence to the employee at this time. However, if you want to give this list to the employee, we recommend attaching it to the end of the PIP initiation so as not to start off on a negative and put the employee on the defensive.

If the employee fails to accomplish the PIP objectives and the supervisor decides to fire the employee, the proposal notice should contain proof of each of these pre- and post-PIP mistakes. Yes, this may be more than necessary, but we would rather err on the side of caution than risk a due process violation before the Board.

Civil service law experts who have been around from the beginning say the Santos requirement to prove pre-PIP unacceptable performance is the most significant change to the 5 USC Chapter 43 unacceptable performance procedures in more than 40 years. It is imperative that all who advise management or represent employees be aware of how this change is being implemented by the current Board members. Wiley@FELTG.com

One Way to Help Prevent Mass Murder in a Federal Workplace

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By William Wiley, April 17, 2023

Did you hear about the recent deadly mass shooting at a Louisville bank? According to stories in the media, the killer was a 25-year-old employee. He had worked at the bank for six years, first just in the summers, then full time beginning in 2021. No doubt, he knew most everyone who worked there. Had he been in the Federal civil service, we would say that he had completed probation and was on track to becoming a career employee.

He had a master’s degree in finance from the University of Alabama. Only about 13 percent of the adult population in the U.S. has an advanced degree, so he would be among the more highly educated in most any workforce. He participated in sports in high school.

Apparently, he had raised complaints, perhaps within his workplace. At one point he said, “They won’t listen to words or protests. Let’s see if they hear this.”

So far, there’s nothing unusual about the history of the shooter or the job he held. His description could easily parallel the history of many Federal civil servants: Start your career while young in college, stick to the same type of job for several years, get a good education to prepare yourself for advancement. In fact, that’s exactly how the writer of this article started working for the federal government. Nothing outstanding or exceptional to make this guy stand out.

And then, the twist. He found out that he was about to be fired. As of this writing, we don’t know the reason for that removal decision, but perhaps it was misconduct or unacceptable performance. Soon after, on Monday, April 10, he walked into his workplace with an AR-15 rifle and killed five coworkers, at least two of whom were management officials. He set up an ambush and shot a responding police officer in the head. It is clear he probably would have killed more people if not for the heroic response by law enforcement.

Could this tragedy have been prevented? Could these five innocent lives have been spared? Although there are a number of hypotheticals that could have prevented these killings, the one most relevant to every reader of the FELTG Newsletter is this: Had the employee-shooter been barred from the workplace as soon as the tentative decision to fire him was made, he could not have accessed the workplace with his weapon and his murderous intent. This all happened in a bank, for goodness’ sake, probably one of the most secure workplaces around. Take away his employee hard-pass, instruct security not to let him through the door, and the chances are good he would not have been able to do this terrible thing. I don’t think it takes a great mind to see the advantage to keeping an individual away from the workplace once a tentative decision has been made to fire him. Even good people sometimes make bad decisions.

Now let’s look at the procedures relative to addressing the tentative removal of a Federal employee. Unlike in the private sector, a Federal employee is entitled to three important procedural steps relative here:

  • A written notice proposing removal and explaining the reasons for the tentative firing,
  • An opportunity to respond, and
  • 30 days of pay prior to the implementation of the proposal.

Nothing in law requires an employee be allowed to access the workplace during this 30-day notice period, not even for the response. It is completely consistent with the Federal statute that lays out the removal procedures for a civil servant for the proposal notice to tell the employee that he will be paid for 30 days, but he is barred from the worksite until a final decision is made. Given what happened in the Louisville mass shooting, one might think it prudent to do exactly that. Unfortunately, that is not what the government’s regulations require. Check this out, taken from 5 CFR § 752.404, with my comments in parentheses.

  1. Under ordinary circumstances, an employee whose removal has been proposed will remain in a duty status in his or her regular position. (That means IN THE WORKPLACE.)
  2. In the “rare” circumstances in which the agency determines that the employee’s presence in the workplace may pose a threat, the agency may:
  • A.  Assign the employee to other duties, (Elsewhere in the workplace?)
  • B. Allow the employee to take leave (Why would an employee use up accrued leave when there is a legal guarantee of full pay until a decision is made on his proposed removal?), or
  • C. Place the employee in a paid leave status, away from the workplace, e.g., bar the employee.

Although these procedures eventually allow the agency to bar the employee from the workplace, they do so only after stating that a barring should “rarely” be done.

As a prerequisite, the agency must somehow make the determination that it would be dangerous for this particular individual to remain at work.

Look back over the brief description of the Louisville shooter. Read more about his background if you can find it on the web. Do you see ANYTHING in his history as it was known to his supervisors that would have led them to conclude that his presence in the workplace might pose a threat? It’s fair to conclude that if the shooter had been a Federal employee whose removal had been proposed, he would have been retained in his regular position, in a Federal workplace, where he would be able to avoid the metal detectors at the entry to the worksite by waiving his employee credentials at the guard.

And if that guy happened to be a coworker of yours, where might you be today?

Folks, here at FELTG, we have big drums, medium-sized drums, and tiny little drums. We beat them on occasion because we have great respect for the good work done by most every Federal employee, and because we believe the civil service is a fair and efficient system for employing the career individuals who run our country. The inexcusable and obvious horrific situation potentially created by these regulations gets our loudest beats from our biggest drum. Why, oh why, these regulations are in place, given the clearly appalling potential outcomes and easy fixes, is simply beyond our understanding.

If you know who can change these regulations, or who can tweak your agency’s own interpretation of these regulations, please implore them to DO SOMETHING. What happened in that workplace in Louisville is going to happen again if we don’t act to stop it. Wiley@FELTG.com

[Editor’s note: The recording of Shana Palmieri’s recent virtual training event Assessing Risk and Taking Action is available for purchase. The session provides guidance on identifying signs of imminent violence, creating a risk assessment team, understanding personality traits and cognitive issues, responding to threats or violent acts, and much more. To bring this presentation live to your agency, email info@feltg.com.]

Why, Oh Why, Do You Ever Discipline a Federal Employee?

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By William Wiley, March 15, 2023

So you just read FELTG President Deb Hopkins’ article about Ortiz v. Air Force, DE-0752-22-0062-I-1 (Jan. 25, 2023) (NP). The decision is significant only because it is very unusual (some might say “weird”) for the Board to impose a second suspension after a misbehaving employee has already been reprimanded and suspended without his learning to obey agency rules.

Another recent decision raised this same issue. The Board mitigated a removal to a 10-day suspension even though the agency had previously suspended the employee for five days for the same type of misconduct. Spivey v. Treasury (IRS), CH-0752-16-0318-I-1 (Feb. 15, 2023) (NP). Similar to Ortiz, one of the charges brought by the agency in Spivey failed on appeal and the agency “never stated that it desired that a lesser penalty be imposed if only one of the two charges was sustained.” By not stating in the decision memorandum what the penalty would be if fewer than all the charges were sustained, if one or more charges is not sustained on appeal, the deciding official, thereby, allows the Board to independently assess the Douglas Factors and select a penalty. See LaChance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999).

This second-suspension mitigation highlights one of the great unanswered existential questions about the Federal workplace: Why do agencies discipline misbehaving employees? Suspending an employee for misconduct requires the agency to expend significant resources:

  • What happens to the employee’s work assignments during the suspension? Are they reassigned to hardworking coworkers who have to bear that extra burden? Must the supervisor bring in an outside contractor to do the work? Or does the employee’s work simply not get done during the duration of the suspension?
  • Separate from devoting resources to the suspended employee’s workload, there’s the cost of defending the disciplinary action. Career Federal employees have a plethora of ways to challenge a disciplinary action: administrative grievances, union grievances, EEO complaints, complaints to the US Office of Special Counsel, complaints to the Department of Labor related to veterans’ USERRA rights, MSPB appeals if the discipline is significant, etc.

Given that there can be a considerable cost to an agency when it suspends an employee, and given that an agency usually doesn’t expend resources without some gain in return, what is the benefit that the agency hopes to attain in exchange for a misconduct suspension? Two possibilities come to mind:

  • The agency hopes to motivate the employee to obey workplace rules. Behavioral psychologists call this technique for controlling behavior “negative reinforcement.” The theory is that by suffering pain (physical, mental, financial), the individual will learn to avoid that same pain in the future by refraining from engaging in the behavior that resulted in the pain. Cats sit on a hot stove only once. A child may learn acceptable social behavior as a result of the pain of isolation by being told to sit in a corner. In theory, a Federal employee deprived of part of a paycheck by a suspension will refrain from engaging in the misconduct that resulted in the monetary loss. It’s fair to say that the primary reason agencies suspend employees is to “correct behavior.”
  • Is there some element of just plain old retribution in workplace discipline? An eye for an eye, a tooth for a tooth. You stepped on my foot; I’m going to stomp on yours. You caused me to suffer (by breaking a workplace rule), I’m going to make you suffer (by suspending you without pay) in retribution. Frankly, I would hope that this punishment-for-the-sake-of-punishment, separate from a desire to correct behavior, is not a desired “benefit” for an agency when it suspends an employee. However, when I look at how agencies have handled disciplining employees over the years, and how MSPB has validated those actions, I’m left with a belief that there is something beyond correcting behavior that motivates agencies to suspend.

If we accept that the primary objective of an agency suspending an employee is to correct behavior, then the Board’s mitigation to a second suspension in Ortiz raises a series of fundamental questions:

  • If the agency’s initial suspension of three days did not motivate the employee to abide by workplace rules, what makes the Board think that a second suspension of seven days will teach the employee that breaking rules is to be avoided? In practice, a seven-day suspension is only five workdays, two workdays of lost pay more than the initial three-day suspension. Is the Board thinking that those extra two days of lost pay will cause the employee to begin to obey the agency’s rules even though the first suspension did not?
  • How long should an agency have to tolerate a disobedient employee in its workforce? If these extra two days of lost pay do not result in the employee becoming obedient to the agency’s rules, is MSPB suggesting that another incident of this employee disregarding a directive should result in a suspension of an additional two or three more workdays of pay? What evidence is there that incrementally increasing the length of a suspension might eventually get the employee to obey the agency’s rules?

Perhaps the agency could have done more to protect itself from a mitigation. Not only did the deciding official not testify as to the penalty that would have been imposed if only one of the three charges had been sustained, but the agency’s own table of penalties indicates that a suspension is within the range of appropriate penalties for a third offense — “five-day suspension to removal.”

In Spivery, the table of penalties also allows for a suspension for a third offense. Effectively, agencies that have suspensions within the range for a third offense in their penalty table are acknowledging that a Federal employee who violates workplace rules may remain a Federal employee indefinitely.

There is a significant philosophical question in all of this, one that has not clearly been addressed. Why should agencies discipline employees? I would offer three plausible reasons and encourage agencies to adopt one, then clearly incorporate that into agency discipline policies:

  1. Suspensions are intended to correct behavior. If this is the agency’s objective, then the discipline policy should state it clearly. If the agency uses a table of penalties, then it should incorporate the three-strikes rule for guidance: reprimand, suspend, then removal. If a single suspension does not correct the employee’s behavior, there’s no evidence that a second or third suspension will.
  2. Suspensions are intended to punish. If this is the agency’s objective, then the discipline policy should leave room for more than one suspension, state in what situations more than one suspension would be reasonable, and then be prepared to have any removal mitigated to another suspension. The agency also should be prepared to continue the employment of individuals who repeatedly do not obey workplace rules and expend the resources necessary to do that.
  3. Suspensions have no place in a modern Federal workplace. This is the philosophical position adopted by a number of private sector companies. It is based on the belief that in a mature workforce, employers should not have to inflict pain on employees to get them to obey rules (and the employer should not have to bear the expense and inconvenience of a suspension).

Here’s one way the third option works. The first time an employee engages in misconduct, the supervisor tells the employee in writing that he has violated a workplace rule and that he should adhere to all rules in the future. This notice would be analogous to a reprimand in the Federal system. After notification, if the employee again violates a rule, the supervisor informs the employee of the rule violation and sends the employee home with pay for a day to contemplate whether he is willing to adhere to the company’s rules. If after this opportunity for contemplation the employee again violates a workplace rule, the supervisor offers the employee the opportunity to resign. If he refuses, the supervisor fires the employee. No punishment of the employee, no suspension-harm caused to the employer. Just the civil no-fault resolution of an inability to correct behavior situation.

Our civilization has evolved beyond the indentured servitude and physical bondage of earlier generations of our work forces. We no longer publicly flog or use a pillory with indentured servants who do not work hard enough. We are no longer in the early days of the last century when blue collar employees were seen as a lower class of citizen, beholden to and under the absolute control of their upper-class employers. The modern workplace is an egalitarian organization of knowledge workers with many flexibilities and employment options that were unheard of just a few decades ago.

Our Federal civil servants are getting older. Over the next few years, we can expect a large number of retirements from government service, with those senior citizens being replaced by younger workers who expect to be treated with respect as human beings rather than being forced and coerced into performing their jobs.

Perhaps, it is time for our management approach in the Federal government to evolve beyond discipling and punishing by suspending misbehaving employees, and instead focus on filling the civil service with individuals who follow directives without the need for pain. Wiley@FELTG.com

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To Avoid the Kraken, Warn Without Threatening

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By William Wiley, February 6, 2023

If you have attended any FELTG training relative to handling misbehaving employees, you have no doubt heard our instructors caution that, from a legal standpoint, the less you do to a problem employee, the better. That’s because Federal employees have significant rights when it comes to challenging management actions, and some challenges can be much more serious than others. Therefore, the more you do, the more you will have to be ready to devote resources to defend, and the greater the odds that you might make a mistake.

Consider an employee’s right to file a complaint of whistleblower reprisal with the US Office of Special Counsel. If a supervisor takes – or even just threatens to take – a personnel action that negatively affects an employee, and that employee can convince OSC that the personnel action probably was motivated by a desire to punish the employee for whistleblowing (or filing a grievance or engaging in some other “protected activity”), then OSC will Release the Kraken! 5 USC 2302. If you have ever been on the receiving end of an OSC investigation and the subsequent threat of a stay or discipline of a management official, then you know that the OSC Kraken can be a very unpleasant Kraken indeed. [Editor’s note: Yes, the Kraken is a bit of hyperbole, but meant only to highlight the thoroughness and effectiveness of an OSC investigation.]

And don’t forget, once you’ve taken a personnel action against an employee who believes that whistleblower reprisal was the actual motivation, even if OSC decides not to prosecute, the employee can file an MSPB appeal: motions, depositions, discovery, hearings … all sorts of things that keep you from doing the real work of your agency. You just don’t want to go here if you can avoid it.

This doesn’t mean that an agency should refrain from dealing with a problem employee out of fear of an OSC investigation. Oh, no, that would be un-American. What it does mean is that a smart agency should figure out how to accomplish the objective with the employee that you want accomplished without unnecessarily triggering a possible complaint.

Here’s an example of how that works:

At FELTG, we teach that, as a general rule, supervisors should not issue letters of warning or counseling. That’s because neither is a required action and they are of little, if any, value relative to progressive discipline or eventual removal. If you’re going to put time and effort into drafting and issuing the employee some document to correct misbehavior, then issue a Reprimand, the traditional first step in progressive discipline.

However, there may arise a situation in which the supervisor wants to do something to get the employee’s attention, or simply to emphasize or clarify the workplace rule that the employee has been violating, without disciplining the employee. Someone in your office comes up with the idea of issuing a Letter of Warning and you get assigned the job of drafting it. What do you do?

Let’s say that Pat has been cooking fish for lunch in the break room microwave, making the office smell just awful. The supervisor wants to issue a Letter of Warning. Consider these two alternative drafts:

 

Letter of Warning (Option A)

To: Pat

From: The Boss

In the future, you are not to cook fish in the break room microwave.

 

Letter of Warning (Option B)

To: Pat

From: The Boss

In the future, you are not to cook fish in the break room microwave, or you may be subjected to discipline.

 

Option A puts the employee on notice of the office rule, an essential element of holding an employee legally accountable for future misconduct. Option B does the same thing, AND ALSO OPENS THE DOOR TO AN OSC INVESTIGATION! MSPB has held that a letter of warning or counseling that does not contain a threat of discipline is NOT a personnel action for the purpose of OSC jurisdiction, but one that does threaten possible future discipline is. Campo v. Army, 93 MSPR 1 (2002); Agee-Long v. GSA, MSPB No. SF-0752-17-0518-I-1 (Jan. 20, 2023) (NP).

Federal employment law is difficult enough when just the minimum is done. Just like packing that bug-out bag for when you have to hike into the wilderness to escape some disaster, you don’t want to carry any more weight than necessary. Employ that same principle when deciding how to do this work. Almost always, the less done, the better. Wiley@FELTG.com

Lessons Reinforced: DOs Can Be Heavily Involved Early in Discipline Situations

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By William Wiley, November 7, 2022

As the new Merit Systems Protection Board (MSPB) members plow through the 3,000-plus pending PFRs, we keep an eye out for any new principles of law being developed by the issuance of precedential decisions. However, it is just as valuable to watch for the affirmation of existing Federal employment law principles in new opinions, regardless of whether new law is being created. We all need to know whether any current Board members have a different take on existing precedence or plans to change how we do things.

[Editor’s note: See Bill’s recent article on other principles affirmed in recent MSPB decisions.]

A recent Board decision reminds us that a Deciding Official (DO) can be involved significantly in a disciplinary case before the Proposing Official (PO) issues the proposal notice. In Dieter v. DVA, 2022 MSPB 32 (Sept. 14, 2022), the new Board had to address a claim by the appellant that the agency violated his Constitutional due process rights because, among other things, “the deciding official was biased against him and considered ex parte information in deciding to impose the removal,” Dieter, ¶7. In evaluating this argument, the Board relied on precedence that broadly reinforced that a DO can be significantly involved in the initiation of a disciplinary action.

This is an important issue. At FELTG, we frequently hear from agency DOs who have been told that they must remain isolated from any proposed disciplinary action for fear of violating the employee’s due process rights. This is often frustrating for the higher-level manager who is concerned about workplace misconduct or poor performance yet is supposed to remain above the fray until the lower-level supervisor issues a proposal notice. We all need to appreciate that such isolation of the DO is not required by Board law and is usually bad for workplace management.

In finding no due process violation relative to this issue in Dieter, the Board referenced solid existing precedence that tells us that a DO can be very active in a discipline case without violating due process, e.g.,

  • “A deciding official’s awareness of background information concerning the appellant, her concurrence in the desirability to take an adverse action, or her predisposition to impose a severe penalty does not disqualify her from serving as a deciding official on due process grounds.” Lange v. DoJ, 119 MSPR 625 (2013).
  • “A deciding official’s mere knowledge of an employee’s background does not rise to the level of a due process violation unless ‘that knowledge is a basis for the deciding official’s determination on either the merits of the underlying charge or the penalty to be imposed.’” , 675 F.3d 1349 (Fed. Cir. 2012).

The key to avoiding a due process violation is for the heavily involved DO to be able to testify truthfully something like this:

“Yes, I was deeply involved in this incidence of misconduct. Yes, I have known the appellant for many years and previously witnessed several similar dishonest acts. Yes, I spoke to the employee’s supervisor and told him that he should consider proposing that the employee be fired. And yes, I told the supervisor that I considered that Douglas Factor 1 in the Douglas Factor Worksheet should be specific as to the extent of the harm caused by the misconduct. However, when I made my decision I considered only the evidence file, the employee’s oral and written responses, and the Douglas Factors as assessed by the proposing official.”

The Dieter opinion and order reminds us: If the DO can truthfully deny considering anything outside of these sources, there will be no due process violation.

For this case law reaffirmation, we can say, “Thank you, new Board members.” This principle validates the reality of a typical workplace. Higher level managers are involved in serious personnel situations in the organization, and such involvement is OK. No need to isolate DOs from an incident so long as they know to make their final decision only on facts told to the employee in the proposal materials. We hope all readers of our newsletter understand this concept and work to implement it in real time in their respective roles in discipline and performance-based actions.

In fact, being the aggressive little devils we are at FELTG, we encourage you to go one step further. When drafting a proposed removal letter for misconduct, why not have the PO and the DO sit down together with staff support from legal or human resources, and jointly develop a Douglas Factor Worksheet to be attached to the proposal notice? That way, any predispositions and concerns can be fleshed out early by both management officials simultaneously, and the employee properly notified of those concerns in the proposal notice so he can have a fair chance to respond to them? That should make it easier for the DO to consider the employee’s focused defenses and preclude a need for the DO to bring into the decision-making process any facts or issues not in the proposal.

New decisions that reinforce old principles are good. New ways of doing things built on those old principles that make this business more efficient are even better. Come to our training at FELTG, specifically the upcoming MSPB Law Week December 5-9, and learn how to do this work as well as it can be done. Wiley@FELTG.com

‘Government Careers are Retirement Schemes for the Incompetent’

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By William Wiley, October 18, 2022

Oh, did you like that one?

Well, how about this: “Federal employment is basically welfare with an attendance requirement, but not a very strict one.”

Are you offended yet?

No?

Well you just might be if you read any more of the hundred or so comments relative to a recent media piece on the cable network MSN, entitled Afraid of Being Fired? Consider Working a ‘Forever Job’ with the Federal Government.

If you read the article in its entirety, you probably won’t find anything new. It’s a word salad of labor/employment terms, put together to gain the attention of readers who are predisposed to have a negative view of Federal civil servants. Take several labor/employment terms, throw them together in a scary way and voila! you have an article that makes people angry. And anger gets clicks. One of the saddest realities of life is that a lot of people would rather read something that gets them angry or reinforces a predisposition that they already hold rather than read something that might provide new information to consider.

This human tendency is nothing unusual. I remember a psychological study from the 1970s that looked at the viewing habits of people the weeks after they had bought a new car. Most people tended to pay closer attention to and view ads for longer if they were advertisements for the make of automobile that they had just bought even though they had already committed to that brand. They weren’t looking for new information for a future purchase. Rather, they were looking for confirmation that the make of car they had just bought was as cool as they thought it was. Psychologists call this tendency “confirmation bias,” a term you might have picked up on in your undergrad “Introduction to Psychology” course (if you hadn’t still been recovering from your party-full weekend).

Although reinforcement of a previously held belief isn’t a bad thing in itself, there is a dark side if you think about it. When someone spends time reading things that they agree with, they may forgo spending additional time to read something else with which they do not agree that could be helpful. If you bought a new Ford and then read car ads only about Fords, you might neglect to read that article that provides evidence that a Toyota is a better long-term investment. That would be helpful information for you the next time you buy a car.

With this background in human behavior, how should those of us who believe that the Federal civil service is an honorable, hard-working, and honest calling respond when someone confronts us with this kind of misinformed nonsense? Well, being experts at firing bad people from government, and with a touch of background in psychology, we here at FELTG humbly suggest the following:

  1. As a society we want it to be harder to fire a civil servant than a typical employee in the private sector. That’s to protect us citizens from a government composed of partisans interested mainly in their personal philosophy. Try out this thought experiment: If you are a conservative, do you really want a government filled with a bunch of socialist liberals giving away our tax dollars to dangerous undocumented immigrants? Or, if you are a liberal, do you really want a government filled with a bunch of fascists giving away our tax dollars to fat-cat billionaire polluters? If we did not have extra protections for career civil servants, every time we changed from a liberal to conservative White House, we could expect a significant change from one biased civil service to another biased civil service. The extra protections provided by law to Federal employees is intended to keep that sort of patronage from happening.
  2. Career civil servants have already proven themselves to be above average employees, theoretically among the best and the brightest. First, they have won a merit-based competition for their jobs. Then, they have survived probationary periods (during which they can be summarily dismissed) that are much longer than probationary periods in the private sector: one, two, and sometimes of even three years in length. After surviving these hurdles, a claim that they can no longer do a good job should receive scrutiny. They have proven themselves to warrant continued employment. There should be proof when it is claimed that they do not.
  3. These extra-protections that career civil servants have by law are not really that onerous for an employing agency IF the agency knows what it is doing. Here is all that it takes to fire a bad government employee:
    • The supervisor has to tell the employee what to do. That can be done by giving the employee performance standards or work instructions. There’s no particular form this notification must take. It can be as simple as an email or even oral direction. It would be hard to argue that an agency should be able to fire an employee for not doing something that the supervisor never said had to be done.
    • If the employee makes a mistake and does not do what the supervisor says needs to be done, the supervisor has to tell the employee about the mistake and usually has to give the employee the chance to behave correctly. This can be done through the initiation of either progressive discipline or a performance improvement plan. Unless the employee’s mistakes are causing significant harm, sometimes this might take two warnings. But hardly ever any more than that. Yes, this is more than is required in the private sector where an employee can be fired for a first offense of coming to work five minutes late. But given the goal of our society of having a neutral, non-political civil service, this extra step should not be a big deal.
    • If the employee continues to make mistakes, the supervisor has to give the employee written notice of what has been done wrong and allow the employee to offer a defense or explanation. Once the supervisor issues this notice, the employee must be paid for another 30 days, although there is no mandate that the supervisor keep the employee in the workplace to make even more mistakes. When the law was passed to require this 30-day paid notice period, one of the sponsors of the bill said that 30 days of salary would act as a type of severance pay, allowing the individual some time to find another job. You and I may not think such largess is warranted, but we still would need to concede that these last couple of pay checks are not a significant bar to firing the employee.

That’s it. The employee is now off the government payroll and once more a private citizen. There are a few exceptions and twists to the above, e.g., sometimes the supervisor needs to give the employee only 7 days of a paid notice period instead of 30, or maybe the harm caused by the employee is so significant that there is no need to give the employee a second chance. However, in most situations, not much different from the above is required from one case to the next.

Once the employee is fired, the agency may have to produce evidence that the removal was justified. And for Federal civil servants, “justified” means that it is either probable or possible that the individual really was a bad employee. These are significantly lower burdens of proof than the oft-cited “beyond a reasonable doubt” proof burden required in criminal cases. If a supervisor cannot come up with either preponderant or substantial evidence of bad employee performance or conduct, then the protections against unfair treatment for Federal employees do their job and the employee is entitled to be restored to the government payroll.

In 1883, Emma Lazarus wrote: “Give me your tired, your poor, your huddled masses yearning to breathe free.” In recognition of the 44th anniversary this October of the Civil Service Reform Act of 1978, the law that defined these civil service protections above and made it relatively easy to fire a bad government employee, with apologies to Ms. Lazarus, I would say, “Give me your incompetent, your lazy, your no-good civil servants who think they are on welfare in a forever job.” Using the procedures in the CSRA, a FELTG-trained practitioner can take it from there.

So, if I’m so darned smart, why don’t I do that for you? Hey, I’m retired! Ain’t nobody got time for that. Wiley@FELTG.com

The New Board Affirms Several Established Discipline Principles

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By William Wiley, September 12, 2022

Best practices in our business are worth restating on occasion, particularly when we get new adjudicators at MSPB. From an otherwise unremarkable recent Board final order, we are refreshingly reminded of the following principles related to federal employee discipline.

FACTS: During a discussion with an agency manager, the employee walked toward the management official, snatched a leave request form out of his hand, and then pushed the official’s hand down “in an aggressive manner.”

QUESTION: Can an agency fire an employee who does something this minor?

ANSWER: Yes, IF the agency knows what it is doing, see Stevens v. Navy, DC-0752-21-0412-I-1, August 5, 2022 (NP).

REAFFIRMED DISCIPLINE PRINCIPLES:

  1. A generic unlabeled charge is often better than a more specific labeled charge. If you have attended FELTG’s famous MSPB Law Week seminar, you know that an unlabeled charge of misconduct has no separate elements of proof; the agency need prove only the underlying misconduct. In comparison, a labeled charge requires that the agency prove both the underlying misconduct AND the elements of the definition of the specific charge. Here, the agency used the generic unlabeled charge of “unacceptable conduct.” Therefore, it needed to prove only the “FACTS” laid out above. On appeal, the appellant argued that the agency failed to prove that an “assault” or “threat” occurred. Because the agency avoided using the specific labels of “Assault” or “Making a Threat,” it had no obligation to prove the elements that define those specifically labeled charges. Therefore, the appellant’s argument failed, and the Board sustained the charge.
  2. Misconduct that occurred many months earlier can be disciplined without the charge being dismissed as stale. In this appeal, the appellant appeared to argue the equitable defense of laches. In that argument, an individual asserts that discipline cannot be administered because the misconduct occurred too far in the past prior to the initiation of discipline. Laches bars an adverse action when an unreasonable delay in bringing the action has prejudiced the party against whom the action is taken. The elements of a laches defense require proof of BOTH an unreasonable delay AND prejudice, e.g., there is no automatic bar to taking an action just because it occurred far in the past. The one-year delay in this case was found to be neither unreasonable nor prejudicial. In fact, MSPB has previously found that a delay of three or four years did not warrant reversal of the discipline ultimately administered. Therefore, the laches defense failed.
  3. It is safest if the deciding official (DO) does not discuss the proposed discipline with others prior to making a decision. Since the cooling of the Earth, we at FELTG have counseled that the agency is in the most defensible position if the DO considers only the materials in the proposal notice and the employee’s response when deciding what discipline is warranted. If the DO considers facts outside of these two documents, there is a chance the employee’s due process rights will be violated. Constitutional due process requires the agency tell the employee what facts the DO will be relying on so the employee can mount a defense to the proposed action. In this case, the DO did not follow our advice and discussed the pending discipline with others before making a decision regarding the proposal. However, because much of that discussion simply confirmed facts already in the proposal, there was no violation of due process. Separately, even though arguably the DO learned about facts not in the proposal, he testified that he did not rely on those facts. Based on a credibility determination, the judge held that the DO’s testimony was true and concluded that the appellant’s arguments were unpersuasive. The agency won this point on appeal. However, if the DO had not engaged in these ex parte discussions, the judge would not have had to assess credibility and the Board would not have had to review the undisclosed material to determine whether they contained new facts or simply confirmed existing facts in the proposal notice.
  4. A removal after a suspension will almost always be found to be a reasonable penalty. Progressive discipline is not a requirement prior to firing an employee for misconduct. However, if the agency has previously disciplined the employee, removal for a subsequent act of misconduct will almost always be found to be a reasonable penalty even if the later misconduct is relatively minor. This is particularly true if the second act of misconduct is a suspension (as it was here) and similar to the first misconduct (thereby establishing a pattern of misconduct). Always remember, it is not up to the Board to decide what the proper penalty should be. Rather, it is the Board’s responsibility to determine whether the DO properly weighed the relevant Douglas Factors and whether the removal penalty “clearly exceeded the bounds of reasonableness.”

You have three ways to learn basic principles like these: work in the business 10 to 15 years (learning from your mistakes as you go), read 43 years of Board decisions (plus the related decisions of the Federal Circuit Court of Appeals), or attend our FELTG seminars. When deciding which of these to undertake, keep one very important distinction in mind: At FELTG, you get free coffee. Wiley@FELTG.com

Mistakes to Avoid When Removing or Demoting the Poor Performer

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By William Wiley, August 30, 2022

Sometimes an MSPB decision that identifies itself as nonprecedential is still an important decision. That’s especially true in times like these when we have three relatively new members of the Board who are being called on to reconsider established practices of Federal employment law, practices that they have not personally been called on to address before.

A good example of this is the Board’s Final Order in Feesago v. DoD, SF-0432-16-0458-I-1 (August 10, 2022) (NP). When analyzing the appeal of that relatively straightforward 432 unacceptable performance action, the members applied an important principle we have taught here at FELTG for over two decades:

The supervisor MUST tell the employee EXACTLY what level of performance he must attain during the PIP to avoid removal from his position.

In Feesago, the PIP initiation memo told the employee that she would be held accountable for mistakes in her performance in each of four critical elements. However, it failed to tell her how many mistakes she would have to make to be deemed to have failed to meet the standards for two of the critical elements. Therefore, the PIP was invalid for those critical elements.

The cure for this removal-reversing defect that we have incorporated into every PIP initiation memo that we have ever written here at FELTG is this: “During the PIP, you must not make more than three errors relative to this critical element or I will consider you to be performing at the Unacceptable level and thereby subject to removal from your position.”

By the way, I once had an agency attorney try to tell me that the above is an invalid “backwards” standard because it tells the employee what he cannot do rather than what he must do to be performing acceptably. Well, that’s an attorney who has not read the case law very carefully and has not applied common sense to the situation.

A Minimal performance standard (Level 2) is backwards and invalid if it does not clarify where the Unacceptable performance level is, e.g., the agency will lose the appeal if the PIP initiation memo tells the employee that the Minimal standard is “must not make more than three errors.” However, it’s perfectly fine (and according to Feesago, EXPECTED) that you will tell the employee that the acceptable level of performance is “must not make more than three errors.”

Relatedly, several years ago I overheard an Employee Relations specialist tell a supervisor that she should NOT tell the employee how many errors he was making during the PIP that would be counted toward evaluating the minimal level of acceptable performance. I guess that the ER specialist was concerned that if the employee were to be told that he had already exceeded the maximum error level early in the PIP, it would somehow undermine the PIP as “predetermined,” or the employee’s morale would suffer, or whatever. Well, that’s just wrong and a reversible error under the same principle that caused the loss of two critical elements in Feesago.

Of course, the employee should be told how he is doing during the PIP. How can he otherwise know if he is improving or continuing to fail? If you tell the employee that the minimal level of performance is “no more than three errors,” and the employee makes one or two errors during the first week of the PIP and then another couple of errors during the second week, he should be told. If you don’t, the Board will conclude that he has not been given a “reasonable opportunity to improve.”

But what about “morale”? What about “predetermined”? Aren’t those valid concerns? No, they are not. Nothing in law or common sense says that the agency must continue a PIP beyond the point of demonstrated failure. Think about it for a minute. When the supervisor sets a minimum level of acceptable performance in the PIP memo, he is saying that an employee who fails to meet that level is unacceptable and should be removed from the position. If the employee has more than the maximum-allowable errors during the first couple of weeks of a PIP, and the supervisor continues to allow the employee to stay in the position where he can make even more errors after that, doing so undermines the supervisor’s PIP-initiating statement relative to what constitutes Unacceptable performance. The employee cannot undo the early PIP errors by acceptable performance after the point of unacceptability. In this situation, an in-the-know supervisor will end the PIP early and propose that the employee be removed from the position at the moment of failure rather than wait until the PIP expires.

Sadly, here at FELTG we know that there is a fair amount of incorrect advice out there relative to taking unacceptable performance actions. What if the employee has exceeded the maximum number of tolerable errors during the PIP, but the HR/legal advisor erroneously tells the supervisor that the PIP cannot be ended early? How should the supervisor respond if the employee says, “Hey, boss, I’ve already failed. Why should I keep trying? Why are you keeping me on the job?” Easy, if true; the supervisor can say, “Yes, it looks like I’ll have to initiate action to remove you from your position at the end of the PIP because you’ve already failed the performance standard. I’ll continue to observe your performance during the remainder of the PIP so I can decide whether the action I take will be a termination, demotion, or reassignment.” Of course, if demotion and reassignment are not options, the supervisor should not lie. And, of course, the advisor should not be giving bad advice. Federal workplace law is filled with rocks and corresponding hard places for the uninformed.

Although two of the critical elements in Feesago were dismissed as invalid, there were two other critical elements that also formed the basis for the action on appeal. Unfortunately, during the PIP the supervisor did not provide adequate feedback to the employee as to how she was performing under these two valid standards, thereby violating the employee’s right to “a reasonable opportunity to improve her performance.” In the PIP initiation memo, the supervisor (in over-simplification) told the employee, “You are making errors relative to the critical element of Customer Care by doing X.” Then, during the PIP, the supervisor considered Y and Z to be examples of deficient Customer Service performance but did not tell the employee. In finding this oversight to be a critical deficiency in the action, the Board said, “the record does not reflect that any of these issues were ever mentioned to the appellant in the PIP discussions.”

If you are an HR specialist, attorney, or supervisor (or union representative, because we love you guys, too) involved in performance-based actions with unacceptably performing employees, it will be well worth your time to read Feesago from beginning to end. The new Board’s analysis throughout that decision is replete with old-school hints and helpful takeaways relative to how to (or not to) craft a performance-based action. I particularly liked the section where the agency seemed to fault the employee for granting bereavement leave so that a subordinate could make funeral arrangements for his grandmother. Board members have grandmothers, too.

Or you could just sign up to attend FELTG’s next MSPB Law Week seminar September 12-16 or UnCivil Servant September 7-8 and learn about this and all the other principles and best practices to employee accountability. This stuff is not hard IF you’ve been to the training. Wiley@FELTG.com

Q&A About the Douglas Factors Under the New MSPB

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By William Wiley and Deborah J. Hopkins, August 22, 2022

In a recent MSPB case law update (the next one is October 20, if you’re interested), we discussed the Douglas factors and the new comparator analysis the Board laid out in Singh v. USPS, 2022 MSPB 15 (May 31, 2022). This dramatic change in precedent inevitably led to questions, which we thought were worth sharing with FELTG Nation. So here goes.

Q: For the comparator analysis under Douglas, is it required that the Deciding Official (DO) in her decision letter specify or identify any comparable cases, or is it sufficient to state, for example, “in consultation with HR, I considered how the agency addressed similar misconduct in the past.” Wondering what evidence, if any, needs to be put forth in the decision letter regarding comparators.

A: The best practice is for the DO not to consult with anyone they don’t need to. The requirement is for the DO (and the Proposing Official, or PO) to consider misconduct cases they know about that have the characteristics of “same-or-similar misconduct” we discussed in the training. If the DO knows of any cases that fit that definition, or if she decides to ask HR for same-or-similar cases (even though she doesn’t have to), good appellant’s lawyer will grill her on appeal about what those cases involve, and why she felt that they were different. In detail. If the PO/DO were to reference asking HR for same-or-similar situations, and the HR advisor says that there were none, then that HR advisor becomes the appellant’s witness who will be expected to provide details of the cases surveyed.

Unlike expected testimony on appeal, a broad statement will suffice for the purpose of the Douglas factor analysis in the proposal and decision notices. The language we have recommended at FELTG for more than a decade, as long as it is true, is something like: “I know of no other situations in which an agency employee engaged in similar misconduct and was, thereafter, disciplined at a lesser level.”

On the other hand, if the DO/PO knows of similar cases that support the penalty selected, then something like: “In two misconduct cases similar to this situation, removal was determined to be the appropriate penalty.” And finally, if a similar case is known of in which removal was not the selected penalty, something like: “I know of one other case of AWOL in which the employee was not removed. However, in that case there was no significant harm caused by the unapproved absences. In this situation, the employee’s absences caused the agency to expend $5,000 to hire a contract replacement.” Or whatever the distinction may be.

Q: What is the rationale for separately attaching a Douglas factors worksheet instead of solely discussing it within the proposal notice?

A: We’ve seen numerous cases over the years in which the proposal or decision notice contained the Douglas factor considerations along with the misconduct charges. Unfortunately, doing so has the potential of confusing the Board as to which fact statements are relevant to the charge and which are relevant to the penalty. We have learned from history that the MSPB generally expects us to prove every factual assertion relative to the charge (due process requirement), but only most of the fact statements relative to the penalty, although proving everything is always ideal. Therefore, when the misconduct facts get mixed with the penalty facts, the Board has a problem weighing them. We don’t want the Board to get confused about anything we do.

Separately, using a Douglas factors worksheet forces the PO to go through each of the 12 factors, evaluating those that are relevant and noting which are not. We have seen many cases in which an agency lost the penalty because the PO or DO ignored or failed to adequately address one or more factor. A worksheet reduces the possibility of making this mistake. Administrative judges are trained to assess each of the 12 factors in order. A worksheet lays that out for them to the benefit of the agency.

That said, it is not a critical error to include the Douglas factor analysis in the body of the proposal notice. Clearly delineated and identified as penalty factors separate from the misconduct charge facts, encompassing all 12 Douglas factors would work. But there is no reason you would want to go to that extra trouble and accept that extra risk.

A separate worksheet attached to the proposal notice, as we noted in the recent caselaw in the training, helps the Board understand (and affirm) the agency’s action. It is a good idea without a downside.

One final thought. For goodness’ sake, DO NOT violate the employee’s Constitutional right to due process. The Board will automatically reverse a removal, without consideration as to whether there was any harm, if the DO considers Douglas Factors relied on by the PO, but not communicated by the PO to the employee. See Braxton v. VA, DC-0752-14-0997-A-1, August 12, 2022 (NP).

This really is easy, folks. Just have the PO do a Douglas Factor Worksheet, staple it to the Proposal Notice, and fuhgeddaboudit. Hopkins@FELTG.com

Is This the New MSPB’s First Problematic Decision?

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By William Wiley, August 16, 2022

In the humble opinion of this old Board observer, President Biden’s recent appointees to be members of the US Merit Systems Protection Board have done a very good job with the content of the rulings they have handed down since beginning to work this spring. Most practitioners were glad to see anything coming out of MSPB HQ after a five-year drought of decisions. It has been a pleasant surprise to see the direction the legal analyses have taken is well-based and consistent with common sense, upholding much and modifying where necessary.

Save for one. Here’s the fact pattern in Chiovitti v. Air Force, MSPB No. PH-0752-21-0212-I-1 (July 12, 2022)(NP):

  1. The employee was removed based on a charge of Conduct Unbecoming.
  2. In the decision notice implementing the removal, the Deciding Official (DO) told the employee that he could challenge the removal decision by either filing a) a grievance under the negotiated grievance procedure or b) an appeal with MSPB, but not both.
  3. The employee chose to file a grievance in lieu of a Board appeal.
  4. The agency denied the grievance on unspecified “procedural grounds” i.e., not on the merits of the charged misconduct.
  5. The union, on behalf of the employee, invoked arbitration.
  6. The grievance was pending before the arbitrator for nearly a year. After discussions between the agency and union representatives, the union agreed to withdraw the grievance. In exchange, the agency agreed not to contest MSPB’s jurisdiction over the termination.
  • While not clear from the opinion, it appears that during the processing of the grievance, the agency was arguing that the matter could not be arbitrated because the employee is a probationer. Perhaps this was the “procedural grounds” on which the agency denied the grievance?
  • 5 USC 7121(c)(4) specifically excludes from arbitration any grievance concerning an “examination,” and the probationary period has long been held to be part of the “examination” process for federal employment.
  • To add a bit of confusion to all of this, two weeks after the union’s withdrawal of the grievance, the agency representative became aware of an unusual agency-specific procedural agreement that established that the employee was not a probationer, i.e., that he had completed probation/examination and that the merits of the removal indeed could be arbitrated.
  1. On appeal to MSPB, the administrative judge dismissed the appeal as filed too late. After all, the termination had taken place over a year previously and the employee’s choice of the grievance procedure precluded a later choice of the MSPB appeal process.
  2. On petition for review, the employee argued that good cause existed for excusing the late filing because the DO had provided incorrect information when he told the employee he could file either a grievance or an MSPB appeal.

In deciding the PFR, the new Board members remanded the case to the administrative judge. The issue for the AJ to decide on remand is whether the DO provided “incorrect information” in the decision notice regarding whether the appellant had a right to file a grievance concerning the termination.

OK, wait just a minute.

The employee was in a bargaining unit. Bargaining unit employees have the right to file a grievance. The employee chose to file a grievance. So where is the possibility that the DO provided the employee “incorrect information”?

Well, as they say on the true-crime podcasts, it’s complicated:

  • The Board’s decision speaks of a “decision notice.” Although not addressed specifically, with a decision notice, there most probably would have been a “proposal notice.” Those two steps in removing an employee come to us from 5 USC Chapter 75, Subchapter II on adverse action procedures. As the agency appears to have used adverse action procedures to remove the employee, it must have considered him to meet the definition of an “employee” who is entitled to have those due process procedures used: “an individual in the competitive service who is not serving a probationary or trial period under an initial appointment,” 5 USC 7511(a)(1). In other words, not probationary, because in general agencies do not use proposals and decisions to fire probationers.
  • Then, when the employee filed a grievance to contest the removal, the agency dismissed his grievance on “procedural grounds.” Unfortunately, the Board’s decision does not specify what those grounds are. Could be that the employee filed his grievance beyond the time limit for initiating a grievance. That’s a common procedural failure that would make the grievance nonarbitrable. Or, it could have been that by this stage, the agency was arguing that the employee’s grievance was nongrievable because he is a probationer. Failure of a probationary period is excluded by law from any statutory grievance procedure.
  • Did the agency initially believe the employee to be a non-probationer at the time of removal? That would explain the apparent use of adverse action procedures. And then, did the agency deny the subsequent grievance because it changed its mind and decided to argue that the employee was a probationer not entitled to grieve his removal? We can’t tell from the decision whether that is the case. However, if correct, that would explain why the union was willing to withdraw the employee’s grievance from arbitration and the agency agreed not to contest the employee’s substitute option to appeal to MSPB.

Unusual and complicated situation.Position changes. Mutual misunderstandings. All are within the confluence of federal labor laws and federal removal/termination laws. We can get past all of that. But where does MSPB see that the agency might have violated the employee’s rights by giving him “incorrect information” relative to how the removal could be challenged? He was a bargaining unit employee. The DO was correct to tell him he could file a grievance because bargaining unit employees can file grievances. Could it be that the Board is trying to say that if the employee was a probationer, the DO should not have told him he could file a grievance because a probationer cannot grieve a termination?

If so, that is an untenable dangerous position in which to put the agency, and unfair to both the union and the employee. It is not up to the agency to decide unilaterally whether a bargaining unit employee is a probationer!

Unions and management sometimes disagree on whether a matter is grievable or arbitrable. A union/management relationship is based on the principle that either side may have an opinion different from the other. Happens all the time. The mechanism for resolving those disagreements is the negotiated grievance procedure. In fact, the very first topic that the federal workplace labor law says must be covered by a grievance procedure is that “any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability.” 5 USC. 7121(a)(1). If the DO believed the employee to be a probationer and, therefore, had NOT told the employee he may be able to file a grievance, he would have been potentially depriving the employee and his union of the option of challenging management’s probationary determination through the negotiated grievance procedure.

The law is clear. The merits of the termination of a probationary employee may not be challenged by grieving the matter to arbitration. However, there are several situations in which a union might choose to file a grievance relative to the removal of a probationer, e.g.:

 

  • The statutory definition of “grievance” includes “any claimed violation … of any law.” 5 USC 7103(A)(9). If management were to fire an employee during probation because the employee engaged in union activity, that would be an unfair labor practice and a violation of federal law (5 USC 7116(a)). Therefore, a union or employee could file a grievance relative to the termination of a probationary employee if the claim was that the agency had committed an unfair labor practice.
  • Perhaps the employee wants to grieve that the circumstances that led to his removal were in reprisal for his whistleblowing. That’s another law violation.
  • Does the negotiated grievance procedure cover claims of race/sex/age/etc. discrimination? If so, the terminated probationer might want to pursue a grievance based on one or more of those protected categories.

If this employee was a probationer, the DO had no obligation to inform him of any redress rights at all — MSPB, grievance, or otherwise. At least, not according to government-wide regulations or statute. However, the DO chose to do so anyway. In the alternative, if the employee was beyond probation and thereby entitled to have the DO explain his redress rights to him, it did so when it told the employee he could file either a grievance or an MSPB appeal, but not both.

In either situation, the fact that the employee through his union filed a grievance that was withdrawn prior to arbitration does not lead to the conclusion that the DO made a mistake in the information he provided. The fact that the agency and union came to believe later during the pendency of the grievance that the employee’s removal may be nongrievable, or that in fact the employee is beyond probation and entitled to a full merits appeal to the Board, does not change the election that the employee made.

Did the agency provide misinformation to the employee when it told him he could file a grievance relative to his removal? No, that information is correct regardless of whether the employee was still serving as a probationer or had completed his probation.

The notification that an agency provides that an employee may have the right to file a grievance in no way implies that the grievance will be reviewed on the merits by an arbitrator. Agencies and unions are entitled to disagree as to whether a particular matter is grievable or arbitrable, and to resolve that disagreement through arbitration. The Board’s decision is misplaced in that it remands the case to the AJ for a determination that is unable to be made.

Several years ago, FELTG developed a standardized rights notice that agencies can use to notify employees of the various redress procedures available to them should the agency impose an adverse action. The FELTG rights notice (copy given to all who attend FELTG’s MSPB Law Week seminar) refers the employee to the negotiated grievance procedure with the admonition that the employee should seek advice from a union representative prior to selecting that option. We continue to believe that is the better practice, certainly better than management deciding for the employee and union whether a particular aspect of a disciplinary action can be submitted to arbitration on the merits. Wiley@FELTG.com