This Isn’t the Way Civil Service Justice Should Work

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.]