My Weekly Flash of Genius: Phone Duty for Presidential Appointees

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By William Wiley

Here at FELTG, we are always in pursuit of a better civil service. And one day last week in our semi-annual FLRA Law Week seminar, I had a flash of genius. OK, genius to me. Let’s see what you guys think.

First, the problematic situation. It takes a long time and lots of attorney resources to resolve what should be routine labor relations disagreements. Typical situation:

  1. HQ issues a new policy.
  2. Management’s labor chief notifies Union of potential change.
  3. Union proposes that the change not be implemented.
  4. Management asserts non-negotiability and refuses to bargain. The agency has a “compelling need” for the new policy.
    • If you are already lost, not knowing why management notified the union or what the devil “non-negotiability” or a “compelling need” is, you best get yourself enrolled in out next FLRA Law Week seminar scheduled for November 14-18 in DC.
  5. Union files a negotiability appeal with FLRA. Management has two bad options:
    • Wait until the negotiability process is completed prior to implementing the new policy, or
    • Implement the new policy now, risking an unfair labor practice finding and a status quo ante remedy if the change is eventually found to be negotiable.
  6. Assuming management takes the high road and participates in the negotiability appeal process, the next step is the pre-petition conference with representatives of FLRA. In that discussion, FLRA staff will attempt to mediate the disagreement as to whether there is a compelling need for the policy.
  7. Failing resolution at the pre-petition step, the matter is referred to the staffs of the three Authority members.
  8. Legal research is done, draft decisions are circulated, and arguments as to the proper outcome occur within the Authority.
  9. Eventually, a decision is issued, when at least two of the members agree (the third member may issue a dissent). If there is a dissent, the two members have to review it and may comment on it in the majority opinion.
  10. If the majority opinion is that there is no compelling need for the new policy, the agency is ordered to bargain the implementation of the policy with the Union.

We could spend some time calculating the approximate resources necessary for the Authority to reach a final conclusion in this matter. However, specificity is not necessary to appreciate a central fact: at least a dozen FLRA attorneys and a fair number of weeks (or months) are going to be required to get a compelling-need decision.

Consider, if you will, this genius-level alternative, an alternative that retains in the Authority the power to resolve compelling-need disagreement while avoiding the resource and time commitment of the above procedure:

  1. FLRA establishes weekly phone-in times. One of the three members is assigned to phone duty during each one of these phone-in opportunities.
    • For example, 1:00-3:00 TU, WE, and TH could be established, with each member having the responsibility to be available for the two-hour periods on one of the three days.
    • By internal policy, the three members delegate to the member taking calls the authority to act on behalf of all three members. The board members at MSPB have had a similar internal delegation policy for over 20 years relative to OSC initial stay requests.
    • It doesn’t seem to me that we would be asking too much of a Presidential appointee who is being paid nearly $200,000 annually to answer the damned phone every now and then.
  1. When a local management team and Union have a question as to whether a new HQ policy is based on a compelling need, they get an appointment with the Authority for a phone-in opportunity. Here’s what would be a typical telephone conversation.

Member: Hey everybody. This is Pat. Who do we have on the call today?

Management: Sir, this is Deputy General Counsel Ann Anderson, on behalf of the US Administrative Agency. We need to implement a new policy for which we believe we have a compelling need.

Union:  Sir, this is Chief Steward Ursula Underwood. That new agency policy is no more based on a compelling need than my bad breath is based on evil thoughts.

Member: OK, first, we do first names in this process. Second, you both know how it goes. Ann, you have seven minutes to pitch me your side of the situation, including statements from any witnesses you want me to hear.

Mgmt:  Got it. Here goes … [Blah, blah, blah for seven minutes].

Member:  More interesting than usual, Ann. I appreciate the extra effort put into your organization and elocution. Ursula, what does the union have to say about this fascinating argument in your seven minutes?

Union:  Well, Pat, I can tell you that on behalf of the union, we think you need a bucket and mop to clean up this pile of poo. [Blah, blah, blah for seven minutes].

Member:  Typical Union drivel, Ursula. I would have thought you had moved beyond the 1950s. Ann, you have two minutes for rebuttal.

Management: [Blah, blah, blah]

Member: Ursula, your turn for two minutes.

Union: [Blah, blah, blah]

Member: Hmmm. You have both made good points. And I appreciate your time. However, as for time, it is my time to tell you my decision. After considering your extensive and entertaining arguments, it is my conclusion – on behalf of the Federal Labor Relations Authority – that, although a close call, the agency’s intended change is NOT based on a consideration for which there is a compelling need. Therefore, the union’s proposal is negotiable and USAA is hereby ordered to engage in collective bargaining on the substance of the proposed new policy. Ursula, if Ann and her team don’t comply with this order to engage in bargaining on this issue, give our Solicitor a call at 202-343-1007 and we’ll get a court order for you. Any questions?

Management:  No.

Union:  Not a one.

Member:  Then, we’re done. Best of luck to you both. If you need us again in the future, you know our number. Have a nice day. FLRA out. [Mic drop]

“Oh, Bill. Have you lost your freaking labor relations marbles? Obviously, this will result in a terrible decision. We need lots of lawyers thinking lots of legal thoughts and writing lots of labor-law words to get a valid decision on negotiability. What about consideration of all those factors related to a ‘compelling need’ determination: core function of the agency, necessary rather than merely helpful, possibly abrogation, excessive interference, and the KANG analysis? We can’t really get a good decision if those factors aren’t weighed and analyzed in excruciating detail, can we?”

Of course, we can. Those highly subjective and impossible-to-define terms are just ways that an individual Authority member can justify his or her gut call on whether a matter should be negotiable. Do you think that there has ever been a member in history who actually understood those arcane concepts, and then used them to assess a particular set of facts to draw a rationale conclusion? Of course not. NOBODY understands what these terms mean. They are just weasel words that can be shaded and twisted to support whatever conclusion a member wants to make. And I mean no disrespect by making this statement. Judges do this, Board members do this, and goodness knows that Supreme Court Justices do this. It is the way the world works, whether we admit it or not. We may say, “Pay no attention to that man behind the curtain,” but we still know he is there.

So let’s cut the crapola. Our adjudicators know the answers before we ever get them our arguments. The law says that the FLRA members are empowered to make labor law decisions. Why waste all that time and resources pretending that they are making better decisions with all the legal theater of our attenuated processes? If a union and management have a disagreement about something, get a member on the phone, let him or her hear the parties out, then issue an immediate decision that allows the government to move on. A good decision today is more valuable than a perfect decision two years from now. And since a year or two of adjudication is no more likely to produce a more perfect decision than one issued next Tuesday, why in the world should we wait?

Wiley@FELTG.com

Morally, Ethically; Spiritually, Physically; Positively, Absolutely; Undeniably and Reliably

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By William Wiley

Ding Dong! The Witch is dead. Which old Witch?

The Wicked Witch! Ding Dong, the Wicked Witch is dead!

Wake up, you sleepy head, rub your eyes, get out of bed.

Wake up, the Wicked Witch is dead!

If that little ditty doesn’t get you dancing around with glee, then you might be a heartless non-Munchkin who needs to dance and smile more.

And, boy oh boy, do I have a good reason for you to dance and smile. But first a perspective.

Back in the good old days – up until 2010 – our cares were few and light when it came to disparate penalty defense. Even if there was someone else in the agency who was not fired who had done the same thing as the current miscreant, it was OK to fire today’s misbehaver as long as he was in a different organizational component.

This was known as the “comparator employee” analysis. Effectively, it resulted in few removals being mitigated because there was almost always enough difference between or among comparators to justify differential discipline. The Board occasionally found other reasons to mitigate, but this Douglas Factor usually did not carry much weight.

Then, in 2010, we started getting decisions from President Obama’s two new Board members. Clearly, they came into their offices with a different take on workplace accountability. Rather than follow the well-worn path of requiring consistency only below the Deciding Official, these newly sworn-in Presidential appointees decided that an agency had a responsibility to be consistent throughout the AGENCY, an absolutely ludicrous and indefensible position with no basis whatsoever in civil service law. The three decisions that nailed down this new principle in 2010 came to be known among seasoned employment law practitioners as The Terrible Trilogy. See Woebcke v. DHS, 2010 MSPB 85; Lewis v. DVA, 2010 MSPB 98; Villada v. USPS, 2010 MSPB 232. And thus, the dark days began.

It is rare that a new twist in case law harms both sides of the bar, employees and management alike. On the management side, agencies began trying to develop world-wide data bases to track all the discipline being administered, and correlating it with the charged misconduct. Soon, agency practitioners began to realize that they simply could not do what the Board was asking because:

  1. The Board was looking for comparator misconduct, not simply comparator discipline. To satisfy The Trilogy, an agency would need to track non-disciplined world-wide misconduct, a physically and mentally impossible task.
  2. Some agencies tried withdrawing from front line managers the authority to hold employees accountable through discipline. The thought was that centralized discipline decisions would provide The Trilogy’s mandated consistency. Of course, when that was done, line managers who are being held accountable for the success of their organizations began to feel dis-empowered and wondered how they could run their organizations effectively with some panel of HQ lawyers deciding who should be fired and who should not.

On the employee side an obvious adverse situation began to develop. In an effort to ensure consistency in appeals of removal actions, agencies began to fire EVERYBODY so that the bar would be kept high for subsequent comparators. Deciding Officials were coached to provide no mercy. A lower penalty today might mean that a monster could not be fired tomorrow as the Members were applying an extremely broad definition of comparators post-Trilogy. In one particularly noxious decision, the Members compared employees doing different work, at different grades, in different organizations, with different discipline histories, with vaguely similar misconduct, to an employee who was fired based on a charge that the Board re-characterized on appeal. Raco v. SSA, 117 MSPR 1 (2011).

Holy moly, was The Trilogy a terrible mistake. And everyone seemed to realize it, except the two Board members who came up with the idea and were in a position to fix things. Fortunately, President Obama’s newest Board Member Mark Robbins, appointed in 2012, understood the situation and immediately began issuing dissents arguing that this agency-wide comparator philosophy was bad law. Unfortunately, he is but one vote out of three, and The Trilogy marched on.

Every now and then, post-Trilogy we would glimpse a ray of hope. There would be a decision that found that the alleged comparator was not actually a discipline-restricting comparator based on some factor not addressed in the three foundational cases from 2010. Even though that “new” factor was no doubt present in The Trilogy, it was not discussed in those three cases as if it had no relevance. The decision I have viewed as the life raft in this mess is Chavez v. SBA, 2014 MSPB 37. In that decision, without distinguishing The Trilogy in any way, the Members held that a number of common sense factors were relevant to distinguishing a comparator employee, factors not really analyzed in The Trilogy cases.

And if Chavez is the life raft, I think I might now see the rescue boat. Thanks to an alert reader who was kind enough to point out a recent non-precedential decision to me, I have reached the conclusion – tentative, but a conclusion nonetheless – that the two remaining Board members have drifted back to where we were pre-Trilogy. When determining that the alleged comparator was not really a comparator for finding a disparate penalty, the Board relied on the following non-Trilogy factors:

  1. Different positions
  2. Different first line supervisors
  3. Different Proposing Officials
  4. Different Deciding Officials
  5. Different charged misconduct

In addition, although in some previous decisions the Board had raised the issue of disparate penalties on its own motion (that’s sua sponte for all you Latin-os out there), in this decision the Board clearly stated that the agency does not have a disparate penalty defense burden until the appellant “triggers” it by proving non-Trilogy factors such as:

  1. The appellant and comparator are in the same work unit
  2. They have the same supervisor
  3. They have the same deciding official
  4. The penalties occurred relatively close in time (MSPB had previously reached back four years to find a comparator)

In addition, the nature of the acts of misconduct must be so similar that a “reasonable person would conclude that the agency treated similarly situated employees differently.” Brantley v. USPS, DA-0752-14-0590-I-3 (April 15, 2016)(NP). In Brantley, the appellant’s act of misconduct was being an accessory after the fact to armed robbery with a firearm whereas the comparator’s act of misconduct was aggravated battery (throwing bleach in a woman’s face). The Board concluded that the nature of these two acts of misconduct was different because they were committed “under vastly different circumstances.”

I can already hear those nay-sayers now. “But Bill, Brantley is non-precedential. Those decisions don’t really mean very much. Besides, the Members are not specifically saying that they are abandoning The Trilogy. In fact, they specifically reference Lewis, one of foundational Trilogy decisions. Aren’t you over-reading things a bit?” Well, no, I’m not. I might be reading between the lines a bit, but sometimes this business requires that we work off nuances and shades of meaning. In 2010, when developing The Trilogy, the Board didn’t make a big deal out of it. In fact, for the most part it pretended that it was just applying established law under Douglas. I’ve had the honor of working with 12 of the 20 Board members we’ve had in history, and I can tell you that they don’t like to announce case law shifts as major. They like to slide into them, ostensibly based on existing precedence even when they are coming out of left field with a new, perhaps controversial, idea. To my read that is what is happening here.

And for those of you who poo-poo non-precedentials, keep in mind that the reason the Board labels them NP is because the Members are saying that there’s nothing new here, and that the analysis rests on established case law. In other words, this is old stuff. So you may not rely on NPs for controlling authority, but you can bet your next step-increase that the judges read these things and see them as instructive.

I may be wrong on this. But you know what? I don’t care. The way the Presidential campaign is going, coupled with the piecemeal attacks on the civil service being thrown around on Capitol Hill, has pushed me into an employment-law-practitioner funk. I need something to lift me up, and by gosh, this is going to be it. As always, go make your own decisions and do what you think needs to be done. As for me, I’ve got some singing and dancing to do:

It’s gone where the goblins go, below – below – below.

Yo-ho, let’s open up and sing and ring the bells out.


Ding Dong, the merry-oh, sing it high, sing it low.


Let them know The Trilogy is dead!

Wiley@FELTG.com

If you have even a little bit of childlike glee left in you, you will click this link and sing and dance along with the Munchkins, as we do here at FELTG. Hey, nobody’s watching! https://www.youtube.com/watch?v=PHQLQ1Rc_Js

 

You Have to Earn Respect

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By William Wiley

This little pop quiz is for you readers who are supervisors. HR specialists will already know the answers.

Pop Quiz No. 1: How much education does a person need to have to be minimally qualified to be a senior Human Resources specialist in the federal government?

  1. A graduate degree
  2. A bachelor’s degree
  3. A high school diploma or equivalent
  4. Zero, as in not even kindergarten

Pop Quiz No. 2: How much government-specific training is a practitioner required to have to be a Human Resources specialist in the federal government?

  1. 80 hours within the first two years of employment
  2. 40 hours within the first year of employment
  3. At least 8 hours annually
  4. Zero, as in not even what can be written on a 3 x 5 note card

Pop Quiz No. 3: Why is the term “human resources professional” a misnomer?

  1. It suggests a distinction from “animal resources professional.”
  2. “Professionals” are individuals who usually develop their craft from the long-term study of a large developed body of knowledge in an institute of higher education.
  3. The main organization in the federal government devoted to the field is named the “Office of Personnel Management,” not the “Office of Human Resources Management.”
  4. All of the above

Fortunately, you don’t need a 3-D printer to come up with the three 4s as the correct answers to these questions. Amazing, isn’t it? The field of personnel management in the federal government has huge responsibilities, can cost an agency millions of unnecessary dollars if it makes mistakes, and its practitioners routinely claim they don’t get the respect they deserve. Yet in my nearly 40 years in the business, the most significant upgrade the field has made to itself that has been made is to change the name of practitioners from “personnel specialists” to “human resources professionals.”

You don’t get to be a professional by declaring yourself to be one. You have to earn it with formal education. Go ask a classifier.

In comparison, look to some of the modern high-tech companies. At Google, for example, in their “People Operations” division, fully 1/3 of their positions are occupied by specialists required to have graduate degrees in organizational psychology or physics. Cutting edge companies like Google see the field of personnel administration to be a science with decisions based on the collection and analysis of large amounts of data, more data than a single specialist could accrue in hundreds of years of experience. For example, do you know the minimum number of interviews required to hire a top-notch performer for your agency? No, you don’t. But the personnel specialists at Google do because they use applied science and data analytics to reach that conclusion.

No disrespect is intended here. The federal government is fortunate to have a number of individuals working in the personnel (or “people”) field who have learned critical thinking and analytical thought through formal education including advanced degrees. A few have developed those skills without formal education. However, until the bar is set across government for a significant minimal educational level for entry into the field, coupled with a requirement for both initial and on-going continuing education in the respective specialities in a personnel function, practitioners will suffer from a lack of respect, supervisors will suffer from a lack of top-notch support relative to people management, and Our Great Country will suffer because the federal government is not as efficient and effective as it could be.

And don’t get me started on attorneys who don’t educate themselves in the field of federal employment law even though they have significant agency responsibilities in the specialty. I can hum this tune forever. Wiley@FELTG.com

Why Do We Suspend Bad Employees?

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By William Wiley

We’re all federal employment law practitioners. Some of us practice as supervisors; some of us practice as advisors to supervisors. As federal employment law practitioners, we don’t just know what to do, we know why we do it (the difference between being a technician and a professional; ask a classifier). With that role in mind, let’s examine the question, “Why do we suspend employees who engage in misconduct?”

It is generally accepted that we discipline employees to correct behavior. A psychologist would say that when we deny pay by suspending an employee, we are providing “negative reinforcement” in an attempt to encourage him to obey the rules and thereby avoid future misconduct.

We certainly do not suspend employees for the sheer pleasure of watching them suffer. If your bag is to experience Schadenfreude, don’t do it by disciplining your employees.

OK, so we suspend employees to correct their behavior. But is there a downside to management when we decide to suspend an employee? Sure. Those days the employee is suspended are days of productivity that are lost, that coworkers have to pick up the slack. So we suspend to correct misconduct, but we pay a price in lost productivity when we do it.

Given the cost to management of suspending an employee, we should look to the least costly suspension that accomplishes the objective of correcting the misconduct. As far as we know, there’s no official limit as to how long an employee can be suspended in the federal government. However, it’s fair to say that the rare outside examples are in the 90-day range.

Next, we look to see if there’s anything that makes longer suspensions more expensive to management than shorter suspensions, aside from the degree of productivity loss that comes from any suspension. And lo and behold, we find that Congress has built into the law a tremendous cost increase as suspensions get longer. 5 USC Chapter 75 (adverse actions) tells us that if an agency suspends an employee up to 14 days (10 work days; generally a pay period), the employee can challenge the merits of the suspension within the agency, but not beyond. However, if an agency suspends an employee for more than 14 days, the employee can challenge the merits of the suspension outside of the agency to the US Merit Systems Protection Board. And as every practitioner knows, a right to appeal to MSPB gives the employee a full blown hearing with discovery (depositions, interrogatories, document production into the millions of pages), an appeal to the three Board members, an appeal to the Federal Circuit, and even a potential appeal to the Supremes.

Several years ago, GAO estimated that it cost the government about $100,000 to defend an agency if an individual filed an MSPB appeal. And that was just through the hearing level. Add to that the cost of defending a long suspension beyond the hearing level, plus the one in four possibility that the agency will lose and have to pay back pay and attorney fees (add in there an expense factor for damages in some cases), and you have yourself a bucket load of potential expense.

I have no problem with high cost. When the Porsche dealer told me that the turbo would add $30,000 to the price of my new 911, I considered that the extra expense would let me get from zero to sixty 8/10 of a second faster, and realized that the extra speed was clearly worth the additional thirty-grand. Others might have chosen the standard model, but it’s my money and I get to decide what’s of value to me.

So let’s look at the value of suspensions of different lengths. Remember, we suspend to correct behavior, not for the enjoyment of punishing someone. Is there any research that shows that a suspension of more than 14 days is more likely to correct behavior than a suspension of 14 days?

No. The Porsche will go faster with the turbo, but there are no studies, inside or outside of government, that show that a longer suspension is more likely to correct misbehavior than would a shorter suspension.

Let’s look at where all of this analyzing leaves us:

  • Longer suspensions (over 14 days) are no more likely to correct misconduct than are shorter suspensions.
  • Long suspensions are potentially more expensive than are short suspensions by a significant factor.
  • Therefore, why would anyone with a scintilla of judgment ever suspend for more than 14 days?

Answer: Beats me.

I once had an attorney who wanted to argue this point say that since MSPB mitigates to 30 and 45 day suspensions, they must be good for an agency. No, they must not. Keep in mind, MSPB is not responsible for an efficient government; the employing agency is. MSPB sets the outer limits; it doesn’t say what the actual decision should be. The speed limit on the Beltway may be 65 MPH, but that doesn’t mean you have to drive that speed in the rain, at night, in heavy traffic. Although the Board might mitigate to a long suspension, that mitigation is always characterized as the “maximum reasonable” penalty, not the “appropriate” penalty. And guess who gets to decide what an “appropriate” suspension is?

Your agency managers do.

If I were in a policy-setting position within an agency, I would set a policy that we don’t do suspensions of more than 14 days. Period. If the employee warrants discipline beyond 14 days, he gets removed. The associated costs to the government of a long suspension simply are not worth the zero added value we get.

Hey, it’s your money. You get to decide what’s of value to you. Wiley@FELTG.com .

A Chance to Do the Right Thing

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By William Wiley

If you know a bit about emergency room medicine (or, heart attacks), you may have heard of “the golden hour.” That’s the critical time period that begins with the onset of a heart attack. The decisions made and the care received during this first hour may determine the quality of all the remaining hours of the life of the patient.

Well, we may this week have begun to see the “golden hour” for the life of the Merit Systems Protection Board. On March 1, 2016, at midnight, Susan Tsui Grundmann completed her term of service as the Board’s Chairman, having begun this odyssey on November 12, 2009.

During that time, the Board endured one of the major challenges of its existence: the processing of thousands of (unnecessary) appeals of furloughs caused by the Stupid Sequestration in 2013. From my view, the credit for handling that mess flows directly to the regional directors and administrative judges who worked day and night to provide fair and expedient hearings and decisions for the individuals who appealed their furloughs. That hard work occurred under the leadership of Chairman Grundmann, and she deserves significant credit for that accomplishment.

However, with credit comes responsibility. And there are decisions for which Chairman Grundmann has responsibility that had, have had, or will have a significant (though unintended) adverse effect on the civil service far beyond the resolution of the sequestration furlough appeals:

  • The Board has ruled, over the objection of the current Member Mark Robbins, that federal agencies must administer essentially identical discipline for similar misconduct throughout an agency throughout the world. The result has been that agencies today are more likely to remove employees rather than show mercy out of fear that implementing a penalty less than removal will lower the bar for all future similar misconduct within the agency. As importantly, the other major adverse result is that an appellant who otherwise may be guilty as sin will have his removal penalty reduced or set aside if anyone else anywhere in the agency has ever engaged in similar misconduct and was not removed. This philosophical change has been the singular most problematic series of decisions issued by the Board in my 40-year career. Woebcke v. DHS, 2010 MSPB 85, Lewis v. DVA, 2010 MSPB 98, and Villada v. USPS, 2010 MSPB 232, aka “The Terrible Trilogy.”
  • Although recently overturned by the Federal Circuit Court of Appeals, the Board held for a period of time that a federal employee could not be reassigned geographically if she did not want to be reassigned. I know; I know. The holding was couched in the language of “the efficiency of the service,” but the result was the same. If an employee refused a reassignment, and it would cost the agency more to fire the employee for being insubordinate than it would to leave the employee in place, the “efficiency of the service” concept mandated that the employee be allowed to remain in the preferred position even though the agency had rightfully decided that the employee’s services could be better utilized in another location. In its reversal, the court stated that the Board “is not empowered to reject controlling law.” Further, “The Board erred as a matter of law in abandoning the two step approach” previously set forth by the court. Cobert [OPM] v. Miller, Fed. Cir. No. 2014 (September 2, 2015). Sadly, the rejection of controlling law has been a characteristic of a number of decisions issued under the leadership of the current Chairman.
  • In reference to the selection of an appropriate penalty, in the seminal case of Curtis Douglas, MSPB ruled that “the Board’s function is not to displace management’s responsibility but to assure that managerial judgment has been properly exercised within tolerable limits of reasonableness.” Douglas v. Veterans Administration, 5 MSPR 280 (1981). In interpreting 38 U.S.C. § 713 (the new legislation that applies to SES removals at DVA), the Board concluded that the efficiency of the service standard and Douglas do not apply, and that the express statutory language creates a rebuttable presumption in favor of the agency’s discretion to select the appropriate penalty. 79 Fed. Reg. 63031, 63032 (October 22, 2014). In other words, it should be even harder for the Board to find a penalty to be unreasonable in a DVA SES removal/demotion action than it would be under the significantly deferential standard of Douglas.

Yeah, well tell that to Deputy Secretary Sloan Gibson of the Department of Veterans Affairs. In decisions issued this year, the Board’s judges, applying the recent precedence established by the Grundmann-Board, while sustaining the charge brought against the appellants, the senior judges assigned to these cases set aside the demotions and removals of three senior executives because the judges disagreed with the managerial judgment in the case: “I do not find these [distinctions made by Deputy Secretary Gibson] are meaningful distinctions.” Rubens v. DVA, PH-0752-16-0151-J-1 (February 1, 2016); “Deputy Secretary Gibson … stated [a co-worker’s conduct] that would go to lacking sound judgment is different. I do not see it as different,” and “Deputy Secretary Gibson testified that he had no intent to discipline [appellant’s co-worker] because [the co-worker] did not receive [$274,019.12 in] relocation benefits. I do not find that these are meaningful distinctions. First, although the she did not relocate, [the co-worker] had a sizable pay raise to lose [of $18,000 per annum].” Graves v. DVA, CH-0707-16-0180-J-1 (January 29, 2016); “In his decision letter, Deputy Secretary Gibson indicated that he considered the appellant’s response to the charge. However, … Deputy Secretary Gibson’s decision letter did not [specifically enumerate the mitigating factors in the appellant’s response].”  “The record does not reflect as simple, obvious, or dire a situation as [Deputy Secretary Gibson] has presented. … I find that the facts and circumstances as presented by the record before me demonstrate that it is unreasonable to remove an employee who has very positively contributed to the agency for more than 42 years for this one offense.” Weiss v. DVA, NY-0707-16-1049-J-1 (February16, 2016).

This SES/DVA series of agency-adverse decisions has had such a negative effect that the Secretary of DVA is in the process of asking Congress to exclude all of his SES discipline from review by MSPB. And as we have predicted here many times, soon it will be obvious that if it’s good enough for those DVA SESers to be exclude from the Board’s jurisdiction, it’ll be good enough for the non-SES contingency at DVA. And eventually, if it’s good enough for DVA, why not DoD? Or, DHS? Or, all the other federal agencies who do important government work as does DVA? The Board’s actions these past five years have pushed us to the brink of losing our civil service protections, the ones we’ve had since the Lloyd-La Follette Act of 1912.

There are other matters that define the past five years at the Board under Chairman Grundmann: appellate level backlog of cases at headquarters, the time and staff necessary to begin issuing non-precedential decisions, and the finding last year by an administrative law judge that top leadership at MSPB reprised against one of its own senior attorneys for whistleblowing. With that noted, the case law direction described above has the greater potential for causing long-lasting difficulties within the civil service, for civil service management and employees.

So how’s all of this related to having a heart attack? Simple, if you think about it. Digest these facts for a few minutes:

  1. Chairman Grundmann’s term ended at midnight on March 1. She is now in a holdover position, able to remain as Board Chairman until March 1, 2017.
  2. Prior to today, President Obama could not replace her. Now he can.
  3. If the White House does not replace her, she becomes a political pumpkin this time next year, unable to remain at the Board.
  4. MSPB has a vacancy. It today has only two Board members rather than the three envisioned by statute.
  5. Assuming that the Republican Senate does not approve the currently nominated Democratic replacement to fill the Board’s vacancy, and assuming that Chairman Grundmann holds over to March 2017, our new President, ___________ (fill in the blank with your prediction), within not quite six weeks of taking office, will be confronted with a one-membered Board that cannot issue decisions because it lacks a quorum.

Hence, a “golden hour.” Actually, a golden year: a period of time in which the White House can act to replace Chairman Grundmann, thereby foreclosing the probable reality that MSPB will cease to function about this time next year, the federal agency equivalent of having a heart attack. And the way to do it, in case anyone at the White House needs advice on this, is to send a nominee to the Senate that has a good chance of being approved, someone who can serve as a healing force rather than as a divider of employees-against-management. As my friend and occasional protagonist, Peter Broida, has said, the Board was created to uphold management’s actions. That’s because agency managers should NEVER fire someone who doesn’t deserve it. If agencies always did it right, the Board would never set aside or mitigate a penalty.

But as recently reported by Chairman Grundmann, in her defense of the reversal of the DVA SES actions, MSPB affirms agency removals 75 to 80% of the time. Although put forth as an indicator of the Board’s neutrality, after 40 years of law-making, to an informed reader that statistic is instead an indicator of the very problem the Board is causing.

We are in desperate times (review the results of the Super Tuesday vote if you doubt me). We need a solid, consistent, deferential approach to the serious adverse actions taken by senior federal managers. MSPB is the only game in town that can take us in that direction. Hopefully, the White House and the Senate can see that and thereby act in cooperation to give us immediately new Board leadership that will take us in a positive direction, away from the brink of civil service collapse and toward a government workforce that is accountable to we, the people. Wiley@FELTG.com

Social Psychology at Work

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By William Wiley

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I’ve Never Seen a Decision Like This One

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By William Wiley

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Well, Maybe She DOES Sue Everyone

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By William Wiley

I get so tired of criticizing decisions issued by EEOC.

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

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

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

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

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

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

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

Oh, the problems with this decision:

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

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

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

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

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

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

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

What! No Tooth Fairy, Either?

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By William Wiley

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

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

Relevant dates in order:

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

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

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

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

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

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

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

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

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

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

 

Exactly What is “Priority Consideration”?

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By William Wiley

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

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

And our occasionally-elucidating response:

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

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

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

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

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