Perhaps MSPB Needs New Glasses

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By William Wiley

Why new glasses? Because the Board seems to have lost its focus. Let me tell you what I mean.

Way back in 1977, when yours-truly was but a babe in the world of “civil service personnel,” Congress was thinking up legislation that was destined to become The Civil Service Reform Act of 1978. In those primordial discussions, Congress began to develop the concept of a new federal agency, independent and given the responsibility to oversee all the major discipline in government (more or less). I remember clearly a couple of Senators referring to this still-conceptual embryonic oversight entity as the “Merit Board.” Nice tight name, I thought. “MB” works well as the acronym (certainly better than the unfortunately-named “Sam Houston Institute of Technology”). So we called it the Merit Board, at least for a few weeks.

Then, without a lot of fanfare, when the draft legislation began to take shape, the name appeared not as the Merit Board, but as the “Merit Systems Protection Board.” A couple of years later when former Civil Service Commissioner Scotty Campbell spoke at one of our earliest conferences, he related that the change was made to emphasize that this new agency had been created to protect the system itself, not to ensure some sort of individualized “merit” throughout government. The concept was that no single small agency could be responsible for every adverse personnel action within the two-million-plus government workforce. Rather, the most that could be hoped for was that the new MSPB would make sure that the merit-based systems were in place for use by the managers who run the various government agencies, and that the systems would provide the protection to the employees within those systems.

That’s why its named the “Merit Systems Protection Board,” not the “Federal Employee Protection Board.” If it were intended to be the FEPB, rather than the MSPB, it would be responsible for protecting the right of individual employees to be treated based on its definition of merit. In comparison, as the MSPB, it is designed to be responsible for protecting the system in which agency managers deal with agency employees, to make sure that those SYSTEMS are grounded in merit.

I know, I know. Sounds a lot like an angels-on-the-head-of-a-pin rumination, doesn’t it. Well, let me show you the distinction in practice.

Hypothetical Scenario: Agency fires employee because of theft.

MSPB World:  MSPB decides whether Agency provided Employee the procedures required by the merit system. Did Agency give Employee clear notice of why his removal was proposed? Check. Did Agency allow Employee to defend himself? Check. Did Agency provide Employee the reasons for the removal, all based on the proposal? Check and done. The focus has been on the application of the system by Agency.

FEPB World:  FEPB decides whether it can protect the employee who is in a merit system from being fired. Did Employee steal from Agency? Did Employee get due process? Did Agency pick the best penalty? The focus has been on the protection of Employee from removal.

Non-hypothetical Scenario:  A supervisory employee responsible for keeping terrorists out of our airplanes lies in a report. Twice. The judge even found part of her defense of herself to be an unbelievable “convoluted” rationale. Who would want a convoluted liar to be responsible for life-and-death decisions? Agency fires her.

MSPB World:  She got notice, she defended herself, the agency made a decision based on all the facts. Done.

FEPB World:  Ah, ha! I, the FEPB, conclude Agency did not prove all charges. I, the FEPB, conclude that she’s really not that bad of an employee because she lied in only a single report, has decent performance ratings, there’s tension in the workplace, and she had no prior discipline. I, the FEPB, conclude that removal is beyond reasonable and that “her misconduct would not preclude her from providing efficient service in a non-supervisory” lower-graded position, plus a 30-day suspension should replace the removal. Brown v. DHS, SF-0752-14-0816-I-1 (2016) (NP).

Note that in the FEPB World, not only did that Board declare that removal was unreasonable, it also concluded that the agency needed someone in a lower-graded position, and even though it might need someone in a lower-graded position, it could spare that individual for a month while suspended. Sure feels a lot more like managing an agency than simply protecting a merit system, doesn’t it?

The scenario in which this loss of focus has become most publicized imvolves the recent reversals of adverse actions taken by DVA against three of its Senior Executives. Instead of MSPB ensuring that the systems that were in place were complied with, it interjected itself into those systems and made decisions that were always intended to be made by the line managers who run DVA. For example, as we noted recently last month, in one of those reversals the Board’s judge said, “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). This is a perfect example of the Board’s case law steering its judge toward the defense of the employee rather than the defense of the system, substituting its judgment for that of the line manager responsible for the operation of the agency.

Think of it this way. You’re ready to buy a new car. I go car shopping with you. We get to the point of considering two cars: a Ford and a Chevrolet. You conclude that the Chevrolet is the better car. I conclude that the Ford is the better car. Given that you are the one buying the car, responsible for driving it, and accountable should anything go wrong with it, who should make the buying decision: you or me? That’s right, you should, and so should it be the agency making judgment-call decisions like this within a merit-based system.

MSPB Chairman Grundmann was called upon earlier this month by several members of the US Senate to explain how the Board could possibly have not affirmed the demotions/removal in these DVA cases. In response, the Board stated that it was just following the law. Well, that’s just nonsense.  The Terrible Trilogy precedent (recent case law that calls for setting aside a penalty if anyone else in the agency who did anything remotely similar was not removed) exists solely as case law developed by the Board under Chairman Grundmann in 2010, and is not required by statute or regulation.  However wrong in its own right, the Board’s disparate penalty analysis was obviously designed for use in cases governed by Douglas, i.e., cases in which penalties can be mitigated.  That is the whole point of the Terrible Trilogy precedent — to justify mitigating a removal penalty to something less even though removal otherwise would be justified.  The Board was in no way required to apply this precedent to cases in which penalty mitigation was prohibited by law, as It is in the DVA/SES adverse actions.

MSPB should not be faulted for following the law, as it said in its response to the Senate inquiry. However, it certainly should be faulted for developing that law in the first place, for turning away from being the protector of our merit systems to being the protector of employees from what it believes IN ITS JUDGMENT to be unwarranted discipline.

By the way, since you’ve decided on the Chevrolet, may I suggest you consider the 2016 Corvette. That baby is wicked-cool and handles as if it was on rails. Of course, it’s your decision, not mine. Wiley@FELTG.com

Must One Be an Employee to Blow One’s Whistle?

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By William Wiley

Pop Quiz:  If an individual who is not a federal employee discloses an agency’s gross mismanagement and then is denied federal employment in reprisal by an agency for making that disclosure, is that individual entitled to pursue a whistleblower reprisal claim through OSC and the Board?

Hmmm.

And the answer is: Nobody knows.

That’s why on January 19, the Board issued a Federal Register notice calling for amicus briefs to address the issue, 81 Federal Register 11 (January 19, 2016), pp. 2913-2914. Seems as though there’s a case pending at MSPB that raises a similar hypothetical and the Board would like to know what you wonderful practitioners think about the issue, Mark Abernathy v. Army, MSPB Docket No. DC–1221–14–0364–W–1.

Now, I know many of you readers have a lot of spare time on your hands and are looking for something extra to do. And you’d like to show off your employment law chops just in case our next President’s transition team is looking for a new Board member (actually, two) over at MSPB about this time next year. What better way to have a sample of your work to send to them than an elucidating legal brief, discussing the pros and cons of both interpretations of the Whistleblower protection legislation (especially in light of the Department of Defense Authorization Act of 1987 – zzz), while reaching the conclusion that everyone on Earth, natural-born citizens and genetically-modified organisms alike, as well as citizens as yet unborn, and perhaps even visitors from other planets (with a proper visa, of course) is a protected whistleblower.

On one hand, it’s nice to see the Board members asking for an opinion from us practitioners. Goodness knows, they should have done that before they went down the dark road of Miller-reassignments and world-wide comparator employee analysis. On the other hand, although this is no doubt an important question for Mr. Abernathy (and perhaps your loyal reporter, were he seeking future federal employment), does it really concern enough potential appellants to be worth the effort of a call for amici?

As Pope Francis once said, “Who am I to judge?” The Members want to know your opinions, and now’s your chance to tell them. The deadline is February 9 so don’t dilly-dally. Be sure to review the Federal Register notice carefully so that you can fully understand this issue. Write well, write strongly, and perhaps affect the future course of federal employment law.

And, simultaneously create a nice writing sample for the President-elect to consider on her way to being inaugurated.

Numbers, We Love Numbers

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By William Wiley

Recently at FELTG, we stumbled across a copy of some MSPB case numbers that we found to be interesting (some call it dumpster-diving; others call it hard journalistic research). From what we could figure out, MSPB HQ has finally turned the corner on processing the multitudinous appeals from the Stupid Sequestration we all endured a couple of years ago. The Office of Appeals Counsel (if you have been to our famous MSPB Law Week seminar, you know who and how important that office is) has reduced its case backlog to just over 150 cases. That’s a remarkable achievement, given the workload increase that office has endured because of the Board’s decision to begin issuing non-precedential decisions several years ago.  150 pending cases is about the level of backload in OAC when I was MSPB’s Chief Counsel in the ’90s, a period of relatively expedient and consistent case processing (if I do say so myself).

The situation with the judges in the regional offices, however, is much darker. For nearly its entire existence, each Board Chairman has imposed a goal of issuing decisions in all initial appeals (the judge’s decision) within 120 days. And more than one MSPB administrative judge has been quietly moved into other employment over the years when he could not keep up with the pace of 120-day adjudication. In a perfect world, the regions would have a backlog of zero cases more than 120 days old. Practically speaking, a few cases will be so complex as to require more time, so you might expect a backlog of maybe 10-12 over-age cases.

As of the end the previous year, according to the reports we recently received, the Board’s regional offices had a 120-day-old backload of over 900 cases.

When you consider that number, think of each of the individual appellants who have a significant part of their lives on hold, awaiting a regional decision in their case. Think of the growing liability exposure each agency involved in the appeal has, if the case involves potential backpay. In my day, in a situation like this, we would have moved troops from HQ to the field to help with the backlog, as soon as we were able to work out details with the Board’s professional association and office directors. I wonder if the current leadership of the Board is taking action to help in the regions.

Proposing a Demotion

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By William Wiley

Questions, we get questions. Not many questions about demotions, however, because agencies rarely use them. But recently we got an interesting query as to exactly what to include in the proposal letter of a demotion:

Today, someone who should know MSPB case law told me that when an agency proposes a demotion, it is required for the proposal letter to state the position and grade to which the agency is proposing the employee will be demoted. This someone added that if this requirement is not met, MSPB will conclude that a due process violation has occurred. I asked this someone to point me to case law, but s/he could only identify the due process cases with which we are all familiar. Am I missing something? How does an employee’s ignorance of the specific job and grade to which he may be demoted impact his due process rights?

And our FELTG response:

Very nice to hear from you. As for your question, amazingly this issue has not come up squarely before the Board, at least not in any final opinions and orders. I think that’s because demotions are rare and because agencies more-or-less routinely say in the proposal letter the step and grade of the demotion. Doing so helps to set the expand bracket for negotiating a lesser demotion with the employee after he responds to the proposal.

From a due process standpoint, I can see a potential problem if I really strain my brain. For example, if we were to propose a “suspension” without stating the length, that might give the employee/appellant the argument that if he had known of the length of the suspension, he would have exercised his response rights differently. If you think about it, an employee might not put a lot of effort into defending against a one-day suspension, but might hire a lawyer for his response if the suspension was going to be 90 days. I can see an analogy to a demotion in that if we don’t tell the employee how much salary he has the potential to lose, he doesn’t know how to exercise his due process right to respond. He might not respond at all if the demotion were one-grade, but might hire a big law firm if it was going to be from a GS-12 to a GS-5.

On the practical side, I don’t know why we would NOT tell the employee to what level the demotion would be. Doing so gives us one less thing to worry about as a possible reversal point (and we know that arbitrators and recently the Board are looking very hard at due process). The employee has a right to respond to the penalty analysis in Douglas. Without knowing the severity of the penalty (the degree of the demotion), it arguably would be difficult for him to respond to the penalty assessment (because he doesn’t know the degree of the penalty).

In my practice, I never propose a demotion. If the employee has done something that warrants a demotion, it also warrants a removal. Therefore, I propose a removal, allow the employee to respond, then offer a voluntarily demotion as an alternative. If the employee accepts, I’ve avoided the appeal/complaint/grievance process. If he does not, the Deciding Official can still implement a demotion instead of the proposed removal as it is a lesser penalty.

Hope this helps. Let me know if you need anything else. Wiley@FELTG.com

Using a PIP in a 752 Performance Removal

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By William Wiley

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

The issue:

Dear FELTG Super-Brains,

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

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

And our insightful (or not) FELTG answer:

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

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

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

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

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

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

EEO Retaliation is a Different Animal

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By William Wiley

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

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

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

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

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

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

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

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

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

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

Accommodating the Disabled Commuter

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By William Wiley

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

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

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

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

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

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

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

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

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

Sometimes I Just Want to Sit Down and Cry

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By William Wiley

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

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

Question:

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

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

Your thoughts?

Our Answer:

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

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

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

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

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

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

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

Learning Points Can Be Good or Bad

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By William Wiley

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

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

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

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

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

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

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

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

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

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

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

 

Speaking of Jack Ryan

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By William Wiley

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

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

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

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

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

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

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

Focus on the essence of this situation for a moment:

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

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

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

Boom! Wiley@FELTG.com