Relief Regarding Administrative Leave During Notice Period

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By William Wiley

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

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

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

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

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

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

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

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

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

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

Using a PIP for a 752 Removal

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By William Wiley

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

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

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

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

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

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

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

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

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

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By William Wiley

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

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

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

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

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

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

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

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

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

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

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

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

Discipline is Different in a Unionized Environment

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By William Wiley

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

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

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

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

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

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

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

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

Appeal to MSPB:  Removal sustained.

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

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

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

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

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By William Wiley

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

Good morning FELTG Spiritual Leaders,

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

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

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

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

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

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

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

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

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

Acronyms Matter When it Comes to Veterans’ Rights

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By William Wiley

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

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

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

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

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

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

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

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

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

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

This Isn’t the Way Civil Service Justice Should Work

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By William Wiley

The drums continue to beat to abolish the civil servant protections we have all come to love and respect. Certainly here at FELTG, we have pushed back hard, arguing that the oversight programs and redress procedures really aren’t that bad, that employees can indeed be held accountable if agencies just understand how easy this can all be done, and that all things considered, ours is a working civil service, redress procedures and all.

And then I run into a case like this one. If Congress really intended for things to be like this, then maybe the time has indeed come to dump the civil service protections completely, because a government cannot work efficiently when stuck with these processes:

  1. The agency involved here has a two-step unacceptable performance procedure. Whereas most agencies require failure of a one-step Performance Improvement Plan prior to removal, this agency (unfortunately) requires that an employee initially fail a Performance Assistance Plan (PAP) and then subsequently fail a Performance Enhancement Plan (PEP) before being removed.
  2. The employee’s supervisor felt that the employee was a poor performer. He kept hand-written notes documenting instances of poor performance. Once he had collected enough documented poor performance, he transcribed the notes into typed form, initiated a PAP, then a PEP, and then fired the employee once she failed everything.
  3. The fired employee took the case to arbitration, claiming race/retaliation discrimination, among other things. The arbitrator found no discrimination, failure of the PEP, and upheld the removal.
  4. MSPB upheld the arbitrator’s award: no discrimination, removal affirmed.
  5. The employee took the issue of the failed PAP (and a couple of other alleged management bad-acts) to EEOC. After a TEN DAY hearing, using two different administrative judges, EEOC found discrimination in the issuance of the PAP. In large part, the discriminatory finding was based on the fact that the supervisor did not keep his hand-written notes once he transcribed them.
    1. EEOC has jurisdiction of the PAP as a claim of retaliation. However, it does not have jurisdiction over the PEP as removal for failing a PEP is a matter within MSPB’s jurisdiction. Therefore, the Commission could not order the agency to reinstate the PEP-failed employee.
    2. Of course, the employee would not have been put on the PEP but-for the agency’s discriminatory placement of the employee on the preliminary PAP. But we can’t get there from here in a legal sense.
    3. EEOC awarded the employee about $15,000 in pain-and-suffering-like compensatory damages, reducing it from a greater amount requested because the employee was “impeached.”
    4. EEOC then awarded the employee’s attorney about $385,000 in fees and costs.

Be sure to get your head around this: the employee was justly fired for poor performance, but got $15,000 in damages; she was discriminated against because her supervisor threw away some notes; and the agency has to pay the employee’s attorney 25 times what the employee recovered as a remedy. If this seems to you like a good way to run a civil service, please-please don’t write to me to explain it. If there is rationality in this mess, it is above my pay grade to understand. Kerrie F. v. SSA, EEOC No. 0720140026 (October 29, 2015).

Being desperate to come up with ANYTHING from this almost-half-million dollar waste of government money, I am left with two points to highlight for you wonderful readers:

  • Be careful of EEOC’s regulation at 29 CFR 1602.14 if you are agency counsel. A good complainant’s lawyer is going to beat you over your head and demand big-time evidence-suppressing sanctions if your poor unsuspecting supervisor fails to keep ANY written note relevant in ANY way to a POTENTIAL personnel action. This regulation goes far beyond the classic prohibition regarding the spoliation of evidence: the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding. Rather 1602.14 says in abbreviated, significant language: Any personnel record made relevant to a termination, shall be preserved for a period of one year from the date of the making of the record. In this case, the “personnel record” that was not preserved was the supervisor’s personal note, not anything in an agency’s official systems of records. And those notes were related to the initiation of the PAP, not directly to the eventual termination for failure of the subsequent PEP. How many supervisors know that if they throw away any scrap of paper relative to employee accountability, EEOC will assume discrimination? I keep trying not to go there, but that’s where I keep coming out.
  • Think, for a moment, how ridiculous this regulation is. Today, a supervisor makes a note (sends an email … whatever) regarding an employee being tardy. He has no idea whether that “personnel record” will be “made relevant to a termination” that might occur in the upcoming year. He either has to store that record for a year on the chance that it might be used relative to a removal or run the risk that he will be sanctioned for not keeping the note. And notice what the sanction was in this case: refusal by EEOC to allow the agency to introduce any collateral evidence (transcript or testimonial) as to what those notes said or what the facts were on which those notes were based. Absolutely ridiculous.

Civil service litigation, when taken to the nth degree as it was here, can easily be an ugly, nonsensical, expensive mess. Set high the price you are willing to pay to avoid it.

It’s going to take some very big and very creative ideas to fix this chaos. Sadly, none of the proposals being batted around in the press and on Capitol Hill would make a dent in a case like this. For a better civil service, we need to go farther beyond the box, to look for a really-huge solution; really far and really-really HUGE. Wiley@FELTG.com.

[Editor’s Note: Here at FELTG, we don’t teach just the law; we also teach things that can help a person get through the world of the civil service when the law is not involved. One of our featured instructors in that effort is Michael Vandergriff, a specialist in Surfing the Swamp© of the inter-personal aspects of conflict resolution. What follows is an article written by Michael that addresses some of life’s missed opportunities.]