It was really a very simple idea. Take a piece of plastic tubing, shape it in a circle, give it fancy name and sell them by the millions. And for good measure, patent it. That’s right, on this day in 1963, Arthur “Spud” Melon, co-founder of Wham-O, received a patent for the Hula Hoop. By that point, Wham-O had already had considerable success selling something it originally called the Pluto Platter, which is a little better known as the Frisbee. All of this makes me wonder why tossing a Frisbee through a Hula Hoop at some distance -- say a football field -- is not an Olympic sport.
At any rate, we won’t make you jump through hoops to register and attend one of our courses or webinars. You can simply visit our website at www.feltg.com or give us a call at 508-349-3777 for one of our upcoming events. EEOC Law Week is the next open enrollment program we’re offering in Washington, DC, and the dates are April 7 - 11. After that, we’re hosting the increasingly popular Legal Writing Week May 5 - 9, also in Washington, DC. Or, if you prefer to go to (well, near) the beach, join us for the brand new Leave & Attendance Management and Performance Management, scheduled for July 22 - 25 in Norfolk, Virginia --just a stone’s throw from Virginia Beach.
If you’d rather attend our training from your comfy office chair, we’ve got a number of webinars on deck, including Attorneys Fees in Federal Civil Service Cases March 20. Our website has all the details.
Anyway, maybe the FELTG Hula Hoop Frisbee team will see you in Rio in 2016.
In the meantime, read and enjoy.
EEOC Opens Public Comment on MD-110
By Ernest Hadley
The EEOC is now taking public comments on its proposed revisions to Management Directive 110 that has been circulating for inter-agency comment. The public comment period closes on April 25.
According to a press release from the EEOC, the proposed directive makes changes in three areas:
1. Implementation of Revised Regulations:
• new procedures for agencies to submit, and the EEOC to approve, requests to conduct pilot projects for processing complaints in ways other than those prescribed in Part 1614;
• revised procedure making an administrative judge's decision on the merits of a class complaint a final decision;
• a new compliance section;
• updated retaliation language in the dismissal section;
• notice to complainant when an agency is untimely in completing an investigation; an
• information on digital filings of appeals and complaint files.
2. Conflict of Interest:
• addressing EEO director reporting relationship;
• EEO and HR conflicts;
• complaint processing of matters involving EEO officials or high-level agency officials; and
• conflicts between agency legal and EEO programs.
3. General Updates & Clarification:
• revisions to the remainder of MD-110 to reflect current policies, procedures, laws and case precedents.
The proposed revisions are available at http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001.
Federal Sector EEO: A History Lesson not Learned?
By Ernest Hadley
I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around me
Pick up my guitar and play
Just like yesterday
And I'll get on my knees and pray
We don't get fooled again
Peter Townsend, The Who
“Won’t Get Fooled Again”
First, a few confessions. I don't really play guitar and I’m not particularly big in the praying department. I can get down on my knees, though these days it takes several minutes for me to get back up once I’ve done that. But I do hope as the draft revisions of EEOC Management Directive 110 make their way through internal agency review and public comment that “we don't get fooled again.” I mean, it does seem we’ve been through this whole process a number of times and some of the basic problems still remain. Just like the end of the song, “Meet the new boss, same as the old boss.”
Most of you read this newsletter -- that is, to the extent that it’s actually read -- to find out what’s going on at the moment and how that may impact upon the future. So, why write about what passes in the law for ancient history? Three reasons. First, we are rapidly approaching the 50th anniversary of passage of the 1964 Civil Rights Act, including Title VII of the Act which factors heavily into everything we do today. Second, sometimes it’s a bit easier to understand where we are if we know where we came from. And, third, maybe, just maybe, there’s something back there to be learned that can help us in shaping the future. In other words, there’s always a chance that by looking back “we won’t get fooled again.”
So, it’s interesting that the EEOC chooses to begin its proposed revisions to Management Directive 110 with a preamble entitled “HISTORY OF THE FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT PROCESS.” There are lots of great little nuggets in the history with things that most folks, including most savvy federal sector folks, probably don’t know. Those nuggets explain to some degree how we come to have this archaic process where an agency accused of engaging in discrimination investigates itself, perhaps with the active participation of its own defense function and then gets to decide, at least in the first instance, whether it will actually accept or “implement” the decision of a third-party neutral.
I guess we could blame Harry Truman. For one thing, I doubt he’ll mind very much, but he was also the one who started it all with an Executive Order banning discrimination on the bases of race, color, national origin and religion in the federal sector back in July 1948. Astute readers will notice something missing. That’s right. There’s no sex. We’ll get back to that in a companion article, but for the moment, the important part is “[t]he Order designated the head of each department to be personally responsible for insuring that employment decisions were based ‘solely on merit and fitness,’ and it required the head of each department to designate a Fair Employment Officer to appraise department personnel actions, receive discrimination complaints, and take necessary corrective or disciplinary action.” The Order also set up a Fair Employment Board (FEB) within the now-defunct Civil Service Commission that, among other things, could hear appeals from agency decisions and make recommendations to the agency head.
It probably seemed like a real good idea at the time. After all, the notion of civil rights was relatively new since Harry was also the one who issued an Executive Order desegregating the Armed Forces.
Dwight Eisenhower tweaked -- and no, that’s not what Miley Cyrus does -- things a bit in 1955 with Executive Order 10590 requiring “each department or agency head to establish procedures to provide a complainant with a fair hearing and the opportunity to appeal their case.” The FEB was abolished in favor of a President’s Committee on Government Employment Policy, which was “limited, however, to reviewing cases and rendering advisory opinions to the agency or department heads before issuance of a final agency action.” I sense a pattern emerging here.
Presidents Kennedy, Johnson and Nixon all got involved and put their own little twists on things, but the fundamental process -- one of agencies deciding whether they had engaged in discrimination -- remained intact. Moving into the 70’s, “testimony presented to Congress suggested that federal employees had little faith in the complaint process and often feared retaliation for challenging discriminatory employment practices.” (Have a familiar ring to it?)
I’ve already pointed out the lack of sex -- no double entendre intended -- up to this point, but notice something else that’s missing? Actually, there are two things. One is a statutory prohibition on discrimination in the federal sector; everything is by Executive Order. Also, there is no mention of the EEOC in all this. That’s right. The 1964 Civil Rights Act created the EEOC, but it had no federal sector responsibilities. The statutory prohibition on discrimination on the bases of race, color, sex, national origin and religion in the federal government came about in 1972 with the passage of the Equal Employment Opportunity Act and that was followed by the Rehabilitation Act of 1973.
It took another president to get the EEOC into the act and, yes, a double entendre is intended there. Jimmy Carter gave us Reorganization Plans Nos. 1 and 2 of 1978, which ultimately led to the passage of the Civil Service Reform Act abolishing the CSC and transferring its federal sector discrimination responsibilities to EEOC. (Yes, the CSRA also gave us the dreaded mixed case complaint and appeals processes, but that’s a subject for another day.) So, EEOC inherited what was already an archaic process.
EEOC has made a number of changes to the process since then, but it remains fundamentally unaltered in the sense that agencies still investigate their own alleged misconduct and, despite the fact that it's supposed to be a nonadversarial process, agency defense counsel still become involved, and agencies still have to take final action on decisions by EEOC administrative judges instead of simply having those decisions become final unless timely appealed.
The history really is a worthy preamble to the proposed revisions and relies heavily on an unpublished history of the EEOC written by John Ross and kept in the EEOC’s library in Washington, D.C. But mere interest aside, the bottom line question is whether all the revisions and its promise of federal sector reform will leave us singing that the old boss is just the same as the new boss, or is it time for that “new constitution?”
Maybe, I’ll take up the guitar.
EEOC Issues another Decision that Does a Disservice to All of Humanity
By William Wiley
Really. I try. Contrary to popular belief, I do not see it as my role in life to pick apart every little decision that comes out of MSPB or EEOC. In fact, for our friends at EEOC, I cut them even more slack than I do MSPB because a) I used to work at the Board, so I know what the standards should be, and b) because EEOC is overworked, understaffed, and has an extremely difficult job to do, sorting through the gazillions of EEO complaints in the system, trying to find and protect the occasional poor soul who actually is the victim of civil rights discrimination.
But even with that forbearance, every now and then an EEOC decision just takes my breath away. Here are the facts from the latest one to cause me to skip my afternoon nap:
- The employee told his supervisor that he was having “health issues” (note that EEOC didn’t say that the employee was “disabled,” only that he was having health issues that may or may not be a legal disability).
- The supervisor told the employee that if he was having health issues that were keeping him from doing his job, the supervisor would find him another job that he could do.
- A month prior to being told about the health issues, the supervisor told the employee he had to attend mandatory meetings or he would be charged AWOL (unless he was already on approved leave).
The poor employee was so upset by all of this direction from his supervisor that he filed a discrimination complaint charging his supervisor with creating a “hostile environment.” The courts have wisely considered these sorts of situations as beneath the intention of the civil rights legislation. The Supreme Court has said something to the effect that civil rights legislation should not be used for the purpose of creating a civil society. Another court (memory escapes me, but you don’t really need a citation for this stuff) said that the courts were not to be used as some sort of super human resources office. Yes, the federal courts seem to appreciate that they have more important things to do than try to referee disagreements between disgruntled employees and overbearing supervisors in the guise of determining whether a “hostile environment” exists in some office somewhere.
Well, that sane approach to life is not one that we see in EEOC’s decision in this case. Reversing the agency’s dismissal of the complaint for failing to state a claim, EEOC concluded that these acts indeed could be considered by a reasonable person to be “hostile or abusive” and ordered the agency to accept and investigate the claims. Complainant v. Secretary of Defense, Agency, EEOC Appeal No. 0120132274 (December 13, 2013).
Oh, where to start. First, the incident relative to telling the complaint to attend a mandatory meeting predates any knowledge on the part of the supervisor that the employee had a “health issue.” There is no law or regulation that guarantees that an employee is entitled to a hostility-free work place. You can’t pursue a discrimination complaint on the basis of being subjected to a hostile environment UNLESS you relate the hostility to a protected category (sex, race, disability, etc.). From EEOC’s decision, this (anonymous) complainant has made no such claim. Even if we were to stretch it and accept that a month later, the employee claims that the meeting incident was based on his disability (more than a “health issue”), there is no claim, and apparently evidence contra, that the supervisor knew about the health issue at the time if the meeting. You cannot be motivated to reprise on a basis on which you have no knowledge.
Second, and much more important in my mind, since when is it abusive or hostile to tell an employee that a meeting is mandatory and the effect of not attending the meeting is AWOL? That’s just the law. EEOC doesn’t even try to inflame the situation; the “supervisor stated.” Not yelled, or spit, or cursed … just stated. What would be less abusive, if he whispered it? Personally, I think it would be abusive if the supervisor did NOT warn the guy that he will lose pay if he doesn’t attend a mandatory meeting, but that’s just me.
Third, there’s the incident of the employee telling the supervisor that he has health issues and may not be able to do his job. EEOC’s decision says that the “complainant’s supervisor threatened to transfer him to another work site if he could not do his job.” Well, if the health issues constitute a disability and the employee can’t perform or be accommodated in his job, the supervisor is required to offer the employee any vacancies it has at the same grade or lower anywhere in the agency if the employee is qualified for the work. The supervisor may not have said it as eloquently as would those of us immersed in the niceties of disability accommodation, but come on … Abusive? Hostile? Not even close, at least not close enough for any reasonable person I know.
I will concede that this is just a decision involving a dismissal, resulting in a remand for investigation. And I will also concede that there is the possibility that the supervisor was abusive rather than conciliatory. Maybe the supervisor said, “Gee [complainant], I’m really sorry to hear you have a medical problem that keeps you from doing your job. But don’t worry. If we can’t help you get-er-done in this position, we have another position to which you can be reassigned so that you won’t be removed for medical reasons, and you won’t even lose any salary.” Or, maybe instead he said, “Health issues? I’ll show you stinkin’ ‘health issues’ once I kick your sorry butt up over the EEO office. You either get your lazy backside in there and do the job you were hired to do or I’ll reassign you to Timbuktu as a ‘reasonable accommodation’ of your fake disability.” But shouldn’t a complaint have to allege issues with specificity so that the agency can fairly interpret whether there’s a viable claim of hostility based on a protected category? Requiring the agency to accept vague accusations such as these – “my supervisor threatened me” – just puts one more case into an overburdened system that the agency will have to investigate, some supervisor will have to give statements, and legal will put pressure on line management to settle, because nobody has the time or interest in litigating these sorts of trivial allegations.
And who suffers the most? Those employees who have legitimate, substantial claims of civil rights discrimination; the ones who have to wait in line behind this guy who got his feelings hurt because his supervisor told him to do his job. If EEOC is seriously concerned about attacking civil rights animus in the federal workplace, it will allow agencies to dismiss these sorts of trivial claims and thereby focus limited resources on the real discrimination that’s out there. The result would be a better government, a stronger country, and a grateful humanity.
Some Exoneration for EEOC on ADAAA
By Ernest Hadley
Some five years after the Americans with Disabilities Act Amendments Act became law, we now have a first federal appellate court decision applying the new definition of disability. There are several points that come out of Summers v. Altarum Institute Corporation, No. 13-1645 (4th Cir. January 3, 2014).
First, the federal appellate courts, or at least the Fourth Circuit, seem to have gotten loud and clear the message Congress sent in passing the ADAAA. More on that anon. Second, it’s nice to know that what Gary Gilbert and I have been teaching about the ADAAA over the last few years is pretty much right in line with what the Court has to say in Summers. Tangentially, this also is good news for those of you who have been listening to us over the last few years. So, let’s see what it is the Court has to say.
First, a few facts. Summers worked at the Maryland offices of a client of Altarum, the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury (DCoE). As the Court eloquently explains:
On October 17, 2011, Summers fell and injured himself while exiting a commuter train on his way to DCoE. With a heavy bag slung over his shoulder, he lost his footing and struck both knees against the train platform. Paramedics took Summers to the hospital, where doctors determined that he had sustained serious injuries to both legs. Summers fractured his left leg and tore the meniscus tendon in his left knee. He also fractured his right ankle and ruptured the quadriceps-patellar tendon in his right leg. Repairing the left-leg fracture required surgery to fit a metal plate, screws, and bone into his tibia. Treating Summers's ruptured right quadriceps required another surgery to drill a hole in the patella and refasten his tendons to the knee.
Doctors forbade Summers from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for seven months at the earliest. Without surgery, bed rest, pain medication, and physical therapy, Summers alleges that he would "likely" not have been able to walk for more than a year after the accident.
Summers inquired about short-term disability benefits and working at home as he recovered. Altarum’s insurance company provided the short-term benefits but Altarum never responded to Summers’ request to work at home nor did it suggest any alternative accommodations. Instead, on December 1, 2011, it fired him.
The first thing the Court focuses on is the “broad coverage” Congress intended in passing the ADAAA and its rejection of the rigorous standards set down by the Supreme Court in cases like Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). The Court noted “Abrogating Toyota, the amended Act provides that the definition of disability ‘shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by [its] terms.’ 42 U.S.C. § 12102(4)(A).”
The next thing the Court focuses on is the EEOC’s amended regulations at 29 CFR Part 1630 and the appendix to those regulations. That’s also significant because in Sutton v. United Airlines, 527 U.S. 471 (1999), the Supreme Court rejected the EEOC’s regulatory definition of disability noting that although Congress gave the Commission the authority to promulgate employment regulations under the ADA, it never specifically authorized the Commission to issue regulations defining a disability. As result, the Sutton Court concluded it did not have to grant deference to those regulations and imposed its own definition of disability on the EEOC.
Noting that the duration of an impairment is one factor that goes to whether it is substantially limiting, the Summers Court relied on an appendix example of someone who has a back impairment that imposes a 20-pound lifting restriction for several months in finding “[i]f, as the EEOC has concluded, a person who cannot lift more than twenty pounds for ‘several months’ is sufficiently impaired to be disabled within the meaning of the amended Act, then surely a person whose broken legs and injured tendons render him completely immobile for more than seven months is also disabled.”
Yes, the Court granted deference to the EEOC’s regulations finding that its interpretation that a temporary condition could be an impairment that substantially limits a major life activity was a reasonable interpretation of the ADAAA and “[t]he impairment alleged by Summers falls comfortably within the amended Act's expanded definition of disability.” That’s what I’ve always called the “last nail in the coffin” of the ADAAA -- the specific authorization by Congress for EEOC to promulgate regulations defining a disability under the Act. It was put there as a guard against courts undoing the ADAAA the same way the Supremes undid the ADA. Apparently, at least the Fourth Circuit got the memo.
The Fundamental Conflict in OPM’s Unacceptable Performance Regulations
By William Wiley
Goodness, we’ve received a bucket-load of questions recently about taking a performance-based removal. You would think that 35 years after the law went into effect that provided for removing a poor performer, we “experts” would know how to do it. But judging from the questions I’ve been getting, many don’t understand the basics. After a re-read today of OPM’s regulations for addressing unacceptable performance, I think I see what may be causing part of the problem.
When trying to understand what to do in federal employment law, as we always teach in our FELTG seminars, start with the statute. And here’s what the good old Civil Service Reform Act of 1978 has to say about addressing unacceptable performance:
Each performance appraisal system shall provide for … removing employees who continue to have unacceptable performance BUT ONLY AFTER AN OPPORTUNITY TO DEMONSTRATE ACCEPTABLE PERFORMANCE [emphasis added]. 5 USC 432(b)(6).
Back in the day when OPM first read this language, by regulation it decided to identify this statutorily-mandated “opportunity” as a “performance improvement period,” and thus was born the lovely acronym “PIP.” Along the way in the 80’s, for reasons I have either forgotten or which were never made public, OPM changed the name of the opportunity from “performance improvement period” to “performance improvement plan.” Conveniently, the PIP acronym still filled the bill, so we practitioners carried forth with that. “PIP ‘em early; PIP ‘em often” just like voting in Chicago, continued to be the mantra of those in the know.
Today, OPM’s regulation does not use the acronym “PIP” at all. Apparently, some smart wordsmith over there re-read the statute and realized that Congress had never called for an “improvement period,” but rather for an “opportunity to demonstrate acceptable performance.” So when you look for the regulatory requirements for taking an unacceptable performance action, you will see that you have to provide the employee an “opportunity” rather than a PIP. To smaller minds, this may not seem like much of a difference. But to our big heads here at FELTG, it is a difference similar to the difference between night and day. Accommodate an analogy for a moment and you’ll see why, as well.
You went to college (some of you more than others). You took courses that culminated in a final exam (some of which you no doubt passed). The lectures that made up the course were your opportunity to improve your base of knowledge on the topic. The final exam was your opportunity to demonstrate competency in the subject. The lectures and the improvement of your knowledge base took several weeks and months. The final exam took a couple of hours. Regardless of how your personal experience may have varied a bit from this example, one thing is certain: Your professor never taught you the material during the final exam. You had to know it by then.
Now go back and reconsider the language of the statute, “an opportunity to demonstrate acceptable performance.” When you think about the analogy, this sounds a lot like a final exam, doesn’t it? Certainly more so than it sounds like the lecture part of a course, the part in which you were working to improve your performance. And when you read MSPB decisions, you will see that the Board has never said that the employee has to be trained to do his job during the PIP, only that at a minimum he needs to be given critical feedback so that he knows what he’s doing wrong. When we here at FELTG teach performance, we tell participants to think of the PIP as the final exam, because doing so changes the supervisor from being a trainer presenting material to an evaluator giving constructive feedback.
And here’s where we come around to the rub in OPM’s regulations. Although the regs do a nice job of using the statutory language that says the employee is to be given an “opportunity” to demonstrate good performance (the final exam), it also says that the agency must provide assistance to the employee to improve performance (analogous to the lectures and the classes) during the opportunity period. 5 CFR 432.104. There is nothing in 5 USC 432(b)(6) -- the statutory section from which OPM derived the concept of a PIP -- about being giving assistance to “improve” performance. Subsection (b)(5) speaks to the system providing for assistance to improve, but that doesn’t mean that the improvement has to occur during the opportunity period.
So, you are wondering with your mighty brain: Who gives a rat’s behind about this arcane language? Well, you do, even if you don’t know it, and certainly the citizens of our great country who would like to see an efficient and effective government care, because:
• If we are dealing with an “opportunity to demonstrate” period, it should be short, to the point, and up or out without a great deal of time involved (like a final exam).
• However, if we are dealing with an “improvement period,” then depending on the job, we could easily argue that several months might be necessary for the employee to improve. And at the end of the period we set, if the employee still is not performing acceptably, maybe that’s because we didn’t give him enough time to improve.
Fortunately, MSPB’s case law tracks toward the statute; that the period is an opportunity to demonstrate competency -- mainly an obligation on the employee, not the time to be taught how to do the job -- mainly an obligation on the agency. At the same time, the regulatory combining of the two concepts causes supervisors and frontline practitioners a world of confusion because they get into the mindset that the employee needs to be given many months during a PIP to improve because he’s such a poor performer now.
I’ve always given our friends at OPM assignments (and they always graciously ignore whatever I recommend). So here’s another one. Hey OPM, if you want to implement what Scotty Campbell and the other Founders of the CSRA intended, please rewrite your regs so that it’s clear that an “opportunity to demonstrate” is different from an “improvement period.” If you’ll do that, and by regulation opine that in most situations, 30 days is a fully adequate opportunity period, I’ll rewrite every PowerPoint slide, book, and article I have ever written to remove the acronym “PIP” and replace it with “opportunity.” And from that point forward, I shall use the acronym only for the one purpose it is so well suited; to identify one of the backup singers for the great Gladys Knight.
Midnight Train to Georgia. Woo hoo!
Sneaking Sex in the Back Door
By Ernest Hadley
So, if you read my companion article, Federal Sector EEO: A History Lesson not Learned, you know that sex was not included when Title VII of the 1964 Civil Rights Act was first proposed. What we do know is that sex was more or less snuck in the back door at the last minute, sort of like Robert Palmer’s “Sneakin’ Through the Alley with Sally.” There’s almost no legislative history on the addition of sex to Title VII. What we’re less certain about is why sex suddenly got added to the Act.
There are two competing versions of history here. One is that sex was added as a joke at the last minute to Title VII in an attempt to defeat the bill. That version of history says that southern Democrats who were not in favor of the bill came up with a plan to amend the legislation to include sex thinking that Congress would not pass bill with sex in it. Another version says there was a planned effort by the National Woman’s Party headed by Alice Paul to include sex in the bill. There is perhaps some irony in the fact that proponents of both versions point to virtually the same evidence to support their respective points of view. By adding just one word to Title VII, Representative Howard Smith, a Democrat from Virginia, touched off a debate that has been the subject of both law review and historic journal articles.
Smith, a known opponent of civil rights legislation, had worked with Paul prior to the 1964 Civil Rights Act thus lending support to the notion that his amendment was a genuine attempt to include sex in the bill. However, his somewhat sarcastic comments on the floor in introducing the amendment have also been used to call his motives into question.
In an article Was the Addition of Sex to Title VII a Joke? Two Viewpoints, Scott Highhouse of Bowling Green State University writes that Smith read the following letter, ostensibly from a constituent, during the debate on the amendment adding fuel to the notion that the amendment was joke:
I suggest that you might also favor an amendment or a bill to correct the present “imbalance” which exists between males and females in the United States….The census of 1960 shows that we had 88,331,000 males living in this country, and 90,992,000 females, which leaves the country with an “imbalance” of 2,661,000 females….
Just why the Creator would set up such an imbalance of spinsters, shutting off the “right” of every female to have a husband of her own, is, of course, known only to nature. But I am sure you will agree that this is a grave injustice to womankind and something the congress and president Johnson should take immediate steps to correct, especially in this election year….Would you have any suggestions as to what course our Government might pursue to protect our spinster friends in their “right” to a nice husband and family?
Even the EEOC seemingly subscribes to this view writing on its webpage celebrating the 35th anniversary of Title VII:
EEOC had expected to receive very few charges of sex discrimination in its early years. It had assumed that the vast majority of charges would allege race discrimination because Title VII had been debated and passed in a racially-tense environment and most of the Congressional and media attention had focused on the problem of race discrimination. It was a surprise to find that fully one third of the charges (33.5 percent) filed in the first year alleged sex discrimination. After all, the prohibition against sex discrimination had been added as a last minute amendment by Congressman Howard Smith of Virginia who opposed the civil rights legislation and thought that Congress would reject a bill that mandated equal rights for women.
But, Highhouse and others point to another comment made by Smith that indicates his support was genuine. Smith noted that under the bill without sex an employer confronted with two applicants, a black woman and a white woman, would be tempted to hire the black woman to avoid a race discrimination complaint and the legislation as drafted could actually work to the disadvantage of white women.
Of course, there is a fundamental flaw in Smith’s reasoning in that the prohibition on race discrimination protects everyone and not just minority races. So, in his example, if the employer used race as a substantial or motivating factor in making the hiring decision, whichever way it went, the other applicant would have a valid race discrimination claim, regardless of whether sex was included in the bill.
Anyway, if you’re so inclined, there’s lots out there to read on the subject and you can draw your own conclusion on which version is correct. What is not really subject to debate any longer though is that, for whatever reason, including sex in Title VII was the right thing to do.
Now, about that Employment Nondiscrimination Act that’s been languishing in Congress for several years, heard any good jokes lately?
Who Says We Aren’t Funny?
By William Wiley
Every now and then some reader will chastise us here at FELTG for being too serious. Of course, ours is a serious business and many of us deal daily with human suffering of one degree or another. However, as we are always eager to serve our clientele, given the current state of the decisions we have been getting out of EEOC and MSPB lately, I thought we could all benefit from a little federal employment law humor. Just promise me you won’t hate me if these are not really funny:
One day in heaven, the Lord decided He would visit the earth and take a stroll. Walking down the road, He encountered a man who was crying. The Lord asked the man, "Why are you crying, my son?" The man said that he was blind and had never seen a sunset. The Lord touched the man who could then see... and he was happy.
As the Lord walked further, He met another man crying and asked, "Why are you crying, my son?" The man said he was born disabled and was never able to walk. The Lord touched him and he could walk... and he was happy.
Farther down the road, the Lord met another man who was crying and asked, "Why are you crying, my son?" The man said, "Lord I'm an agency federal employment law practitioner."
... and the Lord sat down with him and cried.
An appellant’s lawyer gets sideswiped by a truck, and he yells to a passerby, "Look what he did to my car!" The passerby says, "You're kind of materialistic, you didn't even notice that you just lost your arm" The lawyer says, "Oh my God, my Rolex!"
And one last joke:
The union steward heard voices from down in the pond near the office. When he went to check it out, he found a bunch of young women from Employee Relations skinny-dipping there. They all screamed and went down to the deep end where the water was up to their necks. One of the women shouted, "We're not coming out until you leave!" The union steward said, "I didn't come down here to watch you ladies swim naked. I came here to feed the alligator."
OK, I’ll keep my day job.
Don’t Eat the Pink Slime!
By Deborah Hopkins
There are certain areas in life where settling for less than perfection is just not a good idea. Immediately my thoughts jump to running shoes. While training for my first marathon years ago, I realized just how important it is to have quality running shoes. A $35 sale on sneakers might be a good deal, but my poor legs would suffer if I settled for a shoe that didn't meet my body’s specific training needs.
Let me make this a bit more relevant to the non-runners: now I’m talking to the meat-eaters out there. If you’re a carnivore, think about the quality of meat you consume. You definitely want meat that conforms to health and safety standards, don’t you? It’s not worth risking your well-being to settle for anything less than the minimum grade requirement set by USDA. (I’m shuddering now, and having flashbacks from the 2013 news headlines on the pink slime “meat” commonly used at fast food chains.) Vegetarians, you can easily apply this example to tofu or black bean burgers. Other areas where we are told not to settle include education, the friends we choose, the jobs we take, and of course the mate(s) we select. Although, just because we’re not supposed to settle doesn’t mean we don’t, from time to time.
If you read my articles with any regularity -- and I know that’s a big IF since they usually appear last in the FELTG Newsletter, and by the time you get down there you’re probably ready for your lunch break -- you may recall I’m putting in my time as a 2L in the evening program at the David A. Clarke School of Law. This semester, I’m focusing on Alternative Dispute Resolution and have recently been doing some research on settlements. While my current research encompasses a broader reach than federal sector employment-related settlements, some of the principles I’m looking in to are the same. Here are some things I’ve learned, that you may or may not already know.
For a settlement to be reached there is no requirement that either party admits to any wrongdoing, so says EEOC Management Directive 110, Chapter 12 on Settlement Authority. And, a settlement can be reached at any time within the EEOC complaint process. Think about that for a minute. If an agreement can be reached early on, the time-consuming process of investigation and discovery, not to mention actual litigation (and the interminable wait time to get a hearing), will be spared. Most cases settle long before they reach the litigation stage, and long before all the facts are determined. So, the next time you hear about an EEO settlement, remember that it might not be possible to determine who did what to whom. Usually, what actually transpired is known by only the parties involved. Maybe I’m just a nerd for analyzing human behavior, but I think that dynamic is so interesting. When reached early in the process, settlement is resolving a dispute without doing any actually disputing. All this information makes me wish that I’d known how to negotiate settlements, without admitting liability, when I was a teenager and had two teenage sisters I had to share a bathroom with. Life would have been so different.
That Sweet Contract Term “Consideration” Matters.
Oh, it’s so exciting when the things I learn in my core classes in law school intersect with what we do here at FELTG. (Told you I’m a nerd.) Bill and Ernie have both told me that Contracts is a class that will prepare me for life as a federal employment law attorney, and indeed they’re correct because now I know that a valid settlement agreement must include consideration. Ferrarese v. Postmaster General, EEOC Appeal No. 01A31288 (2004). The old-school definitional interpretation of consideration required some type of detriment to the parties involved; a newer definition, put simply, is “a bargained-for exchange” between the parties. [Editor’s Note: Whatever happened to a “mere peppercorn”? And, what the heck is a peppercorn anyway?] The latter is probably more accurate today because often a settlement is an exchange that leaves both parties in a better place than a long, drawn-out litigation process might. Think about it: even if a complainant prevails and the agency is found liable, that complainant has a whole mess to deal with in the aftermath of the EEO complaint. The same is true if an agency prevails. If the case is settles and the details are kept out of the general population’s knowledge, there can be tremendous benefit. So, while that bargained-for exchange in the settlement negotiation requires each party to do something, that something doesn’t necessarily have to be to the detriment of the parties.
A Settlement Agreement Doesn’t Have to be Signed.
Wait, what? It’s possible to have an oral settlement agreement? How will it be enforced? How can it even be proven to exist? Those were just some of the questions I had when I learned this tidbit, so let me explain. Let’s say the parties are at the hearing stage and after months or years of battling they finally, finally, decide to settle. The parties can enter into the agreement during the hearing and make the terms a part of the record, therefore causing the oral agreement to be binding to both the complainant and the agency. Makes sense now, right? (If you need more information on this, check out the section on Oral Agreements in Ernie’s EEO Guide). [Editor’s Note: Deb’s correct, but oral agreements are like the plague. They are to be avoided at all costs lest you really like being involved in compliance proceedings.]
These are just a few lessons I’ve learned when it comes to settlement agreements. Please don’t misunderstand me and assume that I think cases should always settle. There are times when it’s important to take the message all the way up (hey, that’s what we have a Supreme Court for) and make a statement. But, settlement can be a very good thing. While this article focused on EEO, settlements have a place in MSPB and arbitration as well. Lucky for all of us, Bill and I are planning to tackle this topic in a 90-minute webinar on July 10, Effective Settlement Negotiations in the Federal Workplace. Until then, happy settling -- and please, please stay away from the pink slime.
FELTG’s HR Current:
By Barbara Haga
Editor’s Note: When we first started this little venture, oh so many years ago, FELTG was really just a one-trick pony, though even then none of us were young enough to be considered ponies. We got together a few times a year as much for social purposes as to teach folks a few of the things we’d learned over the years. But one thing led to another and continues to do so as we’re always looking for new opportunities to expand our federal sector employment law curriculum in ways that help you day-to-day in the workplace.
We added this column by Barbara about a year ago as part of our continuing effort to keep you up to date on the cutting-edge issues in our field. So, I’m now pleased to announce our latest venture with Barbara. Two new two-day HR courses -- Leave and Attendance Management and Performance Management. Designed specifically for the HR practitioner, these are hands-on courses that we’re really excited to offer for the first time.
To launch these new courses, FELTG has set the inaugural voyage for July 22 - 25 right in Barbara’s hometown of Norfolk, VA, with a repeat December 2 - 5 in Washington, D.C. Details are available on our website at www.feltg.com.
We hope you’ll join Barbara for one or both of these courses. And with that, let’s move on to this edition of HR Current.
GEAR Developments Part III
This is the final column addressing the GAO’s report on GEAR issued in September 2013. The report is available at this link: http://www.gao.gov/products/GAO-13-755.
If you’ll recall, there were five pilot agencies. Three implemented GEAR essentially across the agency. Those included the Department of Energy (DOE), the Department of Housing and Urban Development (HUD), and the Office of Personnel Management (OPM). The Department of Veterans Affairs (DVA) implemented at a unit within the National Cemetery Administration (NCA) and the Department of Homeland Security (DHS) implemented at Coast Guard Base Boston.
Appendices V through IX (pp. 40-56) include agency-specific information on the GEAR pilot.
All of the pilots included training for managers in some form as a fundamental part of their rollout. At DOE, OPM, and DHS it was specifically noted that this training was mandatory for supervisors and managers. Many of you reading this article can appreciate how important it is to have the top-management support necessary to make this kind of training mandatory and to enforce the requirement. Employee training was also included in most of the agencies’ rollouts. We sometimes tend to overlook the importance of the employee’s participation in this process, but if performance management is going to achieve its ultimate goals of improved organizational and individual performance, then the employee needs an understanding of what they are being rated on, being prepared for and able to fully participate in progress reviews and annual assessments, preparing self-assessments, etc.
Another theme that emerged in the reports was the deployment of tools to assist in ensuring that all of the requirements of the performance management process were met. Both DoE and HUD mentioned deployment of automated systems as part of the GEAR rollout. DVA’s implementation included development of a variety of “tools to simplify supervisor performance management, employee work required for self-assessments, and requests for training or special assignments.” (p. 53) OPM redesigned forms to make them simpler. DHS posted information on internal websites to assist in the process.
We have all probably lived through implementation of a new program sometime in our careers that never really made it because all of the enthusiasm waned over time and the things that were supposed to happen didn’t. Two items addressed in the reports were designed to ensure compliance: metrics and accountability. The DOE and HUD reports specifically mentioned the tracking of completion of various steps in the process. The DHS implementation included plans to prepare “performance conversation timeliness guidelines for senior leadership” (p.43). DVA identified performance and customer service metrics as part of their plans, and OPM was tracking completion of progress reviews and completion of training requirements.
Along with the metrics comes the enforcement. As noted last time, these steps in the performance process are already covered in the Part 430 regulations, but as part of GEAR most of the agencies built something into their systems to actually hold supervisors accountable. The DOE report noted one of the items to be developed means to “ensure that constructive action is taken when supervisors do not meet training requirements” (p.47). HUD noted that they would measure both timeliness of establishing performance plans as well as timeliness of completion of ratings. DHS incorporated a supervisory performance element for supervisors. DVA and OPM also addressed completion of various steps in the process as a key component of GEAR.
What happened with the progress reviews? Remember that the original GEAR recommendation was for quarterly reviews. Both DOE and OPM adopted that recommendation calling for three progress reviews. DVA and DHS opted for reviews every four months. HUD’s report doesn’t specifically address the interval. Over time hopefully data from sources such as the Federal Employee Viewpoint Survey and other agency instruments will help assess whether more reviews significantly impact performance achievement and management and employee satisfaction.
As I read through the reports, there were a number of things I took away as positives. One notable item was that all of the improvements identified by the pilot participants were achieved within the existing regulations – so there is no reason that other agencies can’t improve their systems by following some of the recommendations.
Paying attention to performance management can yield results just by making it a priority. The same thing occurred with NSPS in DOD. Because of the impact of the system on pay and all of the focus on the system, employees and supervisors took great care to complete what was required, to do it well, and to do it in a timely manner.
I thought several actions in the reports were worthy of highlighting because other agencies might want to consider some of these ideas for their organizations and existing performance systems.
• Alignment between individual and organizational performance. The DVA GEAR implementation at NCA included a major focus on alignment of individual and organizational performance, providing a monthly scorecard to supervisors and employees “… with information of several of NCA’s performance targets that include agency, region, and cemetery-level performance in key operational areas such as client satisfaction and employee safety” (p.51). If we want people to row in the same direction, they need to know where to go. I have had supervisors in classes trying to develop performance plans and when I talk about linking elements to overall agency goals or preparing for assessments by gathering information on accomplishment of agency goals, sometimes they have told me they don’t know what those are or where to get that kind of data. Putting it in managers’ and employee’s hands is a huge step forward.
• In-service day. Having worked at NASA and many places in the Navy with engineers, intelligence officers, and others in demanding positions, I have heard many times that there are not enough hours in the day to take care of all of the HR things that need to be done and get the technical work done, too – and sometimes that technical work directly affects national security or patients’ lives and other critical things. Those managers often reminded me of Dr. McCoy from Star Trek – “Jim, I’m a doctor, not an engineer,” only in this scenario it’s “I’m a ______, not an HR Specialist.” HUD heard this complaint, too, and they came up with a monthly in-service day plan to ensure that supervisors put time on their calendars to take care of their supervisory responsibilities. If you’ve ever tried to carve out some quiet time out of your day to concentrate of something you needed to work on, you might appreciate how important this time could be for meeting-weary supervisors and managers.
• Supervisory assessment. A common complaint within the federal sector is that supervisors are often selected for their technical knowledge rather than their ability to lead people. OPM’s GEAR efforts were concentrated on improving supervisor assessment, selection, and development. Their efforts included evaluating competencies, designing an occupational questionnaire and structured interview questions for applicants for supervisory positions, and a revamped supervisory training curriculum. Hopefully the products developed by OPM will be shared with the rest of the Federal agencies so that validated tools can be made available to selecting officials so that they can obtain information from candidates on those attributes that will make selectees succeed in their supervisory responsibilities and that they are then provided the development that they need to further hone those skills.
GEAR Developments Part II
We are picking up this month with further analysis of the GAO’s report on GEAR issued in September 2013. The report is available at this link: http://www.gao.gov/products/GAO-13-755.
GAO’s Second Area of Review
GAO also looked at how OPM and the Chief Human Capital Officers Council (CHCO) have defined their roles in implementing GEAR more broadly across the Federal government. On page 11 of the report the following statement appears:
According to OPM officials, OPM, as co-chair of the CHCO Council, will provide leadership and direction for the government-wide implementation of GEAR, but the future of GEAR will be determined by the CHCO Council as a whole and not by OPM alone. They noted that the GEAR framework is intended to be flexible and thus did not want to mandate how agencies should implement it.
I guess I am confused again. The CHCO Council has authority to make decisions about implementing GEAR government-wide? According to the CHCO website (http://www.chcoc.gov/about.aspx) this is its mandate:
The CHCO Act (Chief Human Capital Officers Act of 2002) also established a Chief Human Capital Officers Council to advise and coordinate the activities of members’ agencies on such matters as the modernization of human resources systems, improved quality of human resources information, and legislation affecting human resources operations and organizations. (parenthetical and italics added)
It appears that the CHCO Council has gotten a big promotion.
The second half of the statement from page 11 quoted above also troubles me. “GEAR is supposed to be flexible and thus there shouldn’t be a mandate on how it should be implemented.” Earlier in the report GAO includes comments from OPM officials on the five GEAR recommendations. To refresh your memory the recommendations are:
1) Articulate a high performance culture;
2) Align employee performance management with organizational performance management;
3) Implement accountability at all levels;
4) Create a culture of engagement; and
5) Improve the assessment, selection, development, and training of supervisors.
The OPM responses cited in the report were as follows:
OPM officials told us that the practices in the GEAR report are well known and credible but not universally applied in federal agencies. According to an OPM senior official, the GEAR recommendations are “common sense but not common practice.” The same official noted that the GEAR recommendations align with current regulations addressing federal performance management, but that GEAR adds specific strategic and technical guidance and communication strategies. (GAO-13-755, pp. 6-7)
If the GEAR recommendations align with the regulations, then how much flexibility is there in implementing them? From my reading of the regulations most of these recommendations are already requirements for agency systems.
Number 1 – If agencies actually implemented programs that delivered everything that OPM demanded in 5 CFR 430 might we not have that high performance culture?
Number 2 - Does 5 CFR 430.102(b) not start off by establishing that performance management is the method by which the agency communicates and clarifies organizational goals to employees and identifies accountability for accomplishing those organizational goals?
Number 3 - Are managers not already accountable for setting plans, advising employees of the performance requirements, providing a progress review, dealing with unacceptable performance, and rating at the end of the cycle? 5 CFR 430.204 provides the general parameters for an agency system which includes all of these elements and then 5 CFR 430 sections 205 through 208 give the details of how the systems are to operate.
Number 4 - Employee engagement in system design and implementation and in establishing measures is mentioned at least three times in 5 CFR 430 that I could find. 5 CFR 430.204(c): “Agencies are encouraged to involve employees in developing and implementing their system(s). When agencies involve employees, the method of involvement shall be in accordance with the law.” 5 CFR 430.205(d): “Agencies are encouraged to involve employees in developing and implementing their program(s). When agencies involve employees, the method of involvement shall be in accordance with law.” 5 CFR 430.206(b)(1): “Agencies shall encourage employee participation in establishing performance plans.” I think this recommendation is a lot like Prego spaghetti sauce – “it’s in there.”
Number 5 – Improving supervisor selection and training is not a recommendation that is necessarily specific to performance management. I suspect that practitioners in all HR areas would say that if managers understood better about selections, or discipline, or EEO, or performance, the system would operate much better. 5 CFR 430.209(c) already requires that agencies communicate with supervisors and employees (e.g., through formal training) about relevant parts of its performance appraisal system(s) and program(s).
I think OPM’s comments could have been much stronger but then they would have to acknowledge a problem. The regulations already require these things as noted above, but it would seem they are not happening or they are not done effectively. How is it that 35 years later we are still talking about whether the appraisal systems meet the requirements of the regulations? Both OPM and the Comptroller General have authority in this area (see 5 USC 4304-4305). Yet, the big recommendation at the end of the GAO report is that OPM, in collaboration with the CHCO Council and participating Federal agencies, should define roles and responsibilities including updating the toolkit, providing guidance on the use of metrics, and disseminating information through various websites. (GAO-13-755, p.28) I’m not feeling too hopeful that this will achieve a significant turnaround. But, I could be wrong.
Next time we will look at the feedback from the pilot agencies.
In my first HR Current article written last March I discussed the GEAR (Goals-Engagement-Accountability-Results) recommendations regarding performance appraisal. An update is appropriate since the Government Accountability Office (GAO) issued a report in the fall on their assessment of the GEAR pilots. See Opportunities Exist to Strengthen Performance Management Pilot, GAO-13-755, September 12, 2013 available here: http://www.gao.gov/products/GAO-13-755.
The recommendations to improve the federal performance management system came from a group working as part of a joint effort between members designated by the National Council on Federal Labor-Management Relations (LMR Council) and the Chief Human Capital Officers Council (CHCO). The report was made in November 2011 and is available at: http://www.lmrcouncil.gov/meetings/handouts/GEAR%20Report%2011-17-2011.pdf
In its report the GAO assessed the implementation of the GEAR recommendations at five agencies. The GEAR recommendations that GAO reviewed were:
• Articulate a high performance culture
• Align employee performance management with organizational performance management
• Implement accountability at all levels
• Create a culture of engagement
• Improve the assessment, selection, development, and training of supervisors
Predictable GAO Response
I am sorry, but GAO reports really bug me. I am on the distribution list (you can join too at this link: http://www.gao.gov/subscribe/index.php) so I see the list of issued reports every day. Have they ever issued a report that was titled, “This program is going well and the agency should be commended?” I don’t think so. The title of this one is typical with “opportunities exist to strengthen the pilot.” Okay, I suppose I should not be so sensitive; I think we would all agree that there is much to be done to make performance management better.
But, the content of the report did leave me cold. I was hoping for an assessment of whether implementation of GEAR really changed the performance culture so that management reported that expectations were clearer and that led to significant improvements in what employees achieved, that managers and employees were seeing benefits resulting from increased communication about expectations and accomplishment, that managers felt that they had the necessary tools to hold employees accountable to expectations – you know, little things like that. Instead many of the recommendations in the report focus on the implementation of the pilot from a project management view. There is some attention to what I would term the important things based on my list of what I was hoping to see.
Pilot Agencies and Unions
Five agencies are part of the pilot. Three agencies, Department of Energy (DOE), Housing and Urban Development (HUD), and the Office of Personnel Management (OPM), implemented essentially agency-wide pilots covering roughly 22,300 employees. The Veterans Administration implemented at a unit within the National Cemetery Administration covering 240 employees and Coast Guard Base Boston under the Department of Homeland Security was included with 200 employees in the pilot. The tally is just under 23,000 employees in the pilot. OPM implemented the earliest (December 2011) with HUD next in January 2012 and DOE in March 2012. The two smaller groups implemented several months later.
How did the unions respond? Interestingly the DOE unions did not provide any feedback regarding GEAR implementation after being briefed on the proposed changes. (I am guessing the readers from other agencies with more active unions are probably scratching their heads on this one!) The HUD assessment noted that there were four unions, but did not address any specific union issue or input. OPM’s employees were represented by two unions, but again no specific information about issues or proposals is recounted in the report.
Where was there more specific information about engagement of the unions? With the two small groups. The VA group reported that the union suggested that the top level of performance (in their system, Exceptional) be defined so that employees had a clear target if they wished to aim for the high rating. The agency agreed and implemented that suggestion. The Coast Guard Base in Boston was chosen so that there was only one site with one union because nationwide implementation throughout the Coast Guard would have meant coverage of 9,000 employees at multiple sites, with nine unions, and a mix of military and civilian supervisors that rotate on a two to three year schedule. They reported that there were extensive discussions with the union including facilitators and brainstorming sessions during which the union provided input.
GAO looked at three issues. The first was whether GEAR generally addressed key performance management practices that the GAO had identified (GAO-13-755, p.8). (Yes, it seems a bit late in the process since the joint recommendations were issued in 2011, but who am I to criticize?) GAO found that in most regards GEAR satisfied key practices – linking individual performance to organizational performance, incorporating organizational priorities into appraisals, making meaningful distinctions in performance, involving stakeholders, and maintaining continuity during transitions. Two of GAO’s identified key practices were not found to be reflected in GEAR. One was linking performance expectations to cross-cutting goals. The pilot agencies responded that cross-cutting goals would be subsumed under agency and individual performance goals. This seemed to satisfy the GAO finding since no particular actions were required of the agencies in response to this matter.
The other key practice which was not addressed in GEAR was linking pay to individual and organizational performance. GAO‘s key practice and the response are as follows:
Link pay to individual and organizational performance. Pay, incentive and reward systems that link employee knowledge, skills, and contributions to organizational results are based on valid, reliable, and transparent performance management systems with adequate safeguards.
GEAR does not reflect this practice. LMR work group members told us that GEAR does not specifically address pay for performance because Congress controls pay.
I’m certainly happy to know that issue has been put to bed. It might have been better said a couple of ways. For example, that Congress doesn’t really control pay (obviously they could pass something to change the system) but the existing Title 5 provisions do and they set the parameters on the linkage of pay to appraisal. GAO might have said that proper utilization of within-grade increase authorities and effective design of award systems help achieve the linkage. Apparently GAO accepted the
”Congress won’t let us do it” answer because there is no further suggestion regarding pay for performance in the recommendations for Executive Action on pp. 28-29 of the report.
Tune in next time for more about the GAO reports and the GEAR pilots. As always, comments are welcome – particularly if you were in one of the pilot groups. A “boots on the ground” perspective is always welcome.
Content copyright 2
Massachusetts has been my adopted home for almost 30 years now and it suits me well. We’re one of the Original 13 and have managed to spawn a few rabble-rousers and I’m all for rabble-rousing. We even had ObamaCare before the rest of you. We just called it something else -- RomneyCare. We have the World Champion Boston Red Sox, the Stanley Cup finalist Boston Bruins, the AFC finalist New England Patriots and the Boston Celtics. Well, three out of four ain’t bad.
And, of course, we have our financial industry watchdog Senator, Elizabeth Warren. It seems that the senator has a great idea on how to protect low-income consumers and maybe save the U.S. Postal Service in the process. Warren has proposed that the Postal Service offer bill paying, check cashing and small loan services as alternatives to the payday lending industry with its astronomical interest rates. Just another great idea from the Bay State, but I think we should take it a step further and add drive-through coffee service as well. Look out Starbucks. There’s nothing like an Express Mail Espresso.
At FELTG, we won’t loan you any money if you come to one of our courses or attend a webinar, but we will share with you the expertise of our instructors. So, we hope you’ll be joining us soon for one of our upcoming events and at the end you don’t even have to give us back the knowledge you’ve gained. Here's what’s on deck at FELTG as we get ready for the start of spring training. There are still a few spots left for MSPB Law Week in Washington, DC, March 3-7, so get in while you can. Other upcoming DC programs include EEOC Law Week, Legal Writing Week, and the brand new Advanced Legal Writing Week and Supervisory HR Skills Week. As always, we have a number of webinars for practitioners and supervisors, so check the list of upcoming events on our website. Or, bring FELTG onsite for stellar training at your agency or union. With so many options, there’s certainly something for you!
Read and enjoy.
The Gap in Medical Information Guidance
By William Wiley
Sometimes it’s a challenge for those of us in this business to fit the requirements of the regulatory agencies into the practicalities of the federal workforce. The statutory requirements and EEOC’s regulations related to employee medical information is one of those problem areas. Although EEOC acknowledges that agencies (sometimes referred to by EEOC as “employers”) have a right and a need to collect certain types of medical information in certain situations, it places restrictions on how that information can be retained and used once properly obtained (see 42 USC 12112(d) and 29 CFR § 1630.14(b)(1), (c)(1), (d)(1)):
- The agency must treat any medical information it obtains as a separate “confidential medical record.”
- The agency may disclose employee medical information only in limited circumstances.
- Supervisors may be informed regarding restrictions on the work of the employee and necessary accommodations.
These requirements run into real world problems because they appear to be based on an assumption that an “agency” is somehow a separate entity from its “supervisors.” In fact, an agency is composed of frontline supervisors, upper-level managers, sometimes human resources and EEO professionals, and occasionally medical personnel. Through statutory and regulatory inference, some parts of an agency have the rights to see medical information and other parts do not.
This dichotomy characterization creates challenges. First, it is the frontline supervisor who needs to know what’s going on with the employee and who has the responsibility to take action. For example, if the employee has a disability, it’s the supervisor who has to evaluate the essential functions and decide whether the employee’s disability can be accommodated. It’s the first-level supervisor who has to propose that the employee be removed if there is a medical inability to perform. And it’s the supervisor who has to approve or disapprove sick leave requests and take any necessary subsequent disciplinary action should the employee become a leave abuser. Therefore, it is almost always the frontline supervisor who requires that the employee provide medical information.
Some agencies have tried to deal with the implied division between the agency and the supervisor by having the supervisor request medical information from the employee, but having the response to that request provided to someone else. Instead of the medical documentation going to the supervisor, the supervisor directs the employee to submit the medical information to some entity in the agency separate from the supervisor, commonly a medical-related component such as an occupational health unit. The agency’s medical personnel then review the submission, determine whether it is adequate for whatever purpose it was gathered, then they notify the supervisor of the results. The results will depend on why the medical information was obtained. Perhaps the employee has requested Family Medical Leave Act approved absence. Or perhaps the employee is requesting a disability accommodation and the supervisor needs to know the extent of the employee’s functional limitations. In any event, the information is screened by medical personnel who maintain the confidentiality of the details of the medical information (e.g., diagnosis, prognosis, medications … that sort of thing) while disclosing to the supervisor only those aspects of the medical information necessary for the supervisor’s responsibilities (e.g., the functional limitations that comprise the employee’s disability).
And that leads us to the second challenge in the implied-dichotomy model: a number of agencies don’t have an occupational health office to act as a screen of the medical information. There are some independent agencies within the Executive Branch that have no more than a dozen employees or so, none of which is a medical professional. My last employer, the US Merit Systems Protection Board, had no occupational health unit to screen employee medical information. When supervisors at those agencies require employees to provide medical information, there is no entity within the agency to act as the screen. The information goes directly to the supervisor who then evaluates it and decides what to do. And nothing in the Act or EEOC’s regulations specifically prohibits a frontline supervisor from doing this as long as the supervisor keeps the information confidential in conformance with the records retention requirements of separate medical files.
You and I may agree that frontline supervisors do not need to know the details of the medical information that an employee provides. And we might agree that in a perfect world, every agency would be required to identify a “Medical Information Screener” whose job it would be to screen all employee medical information, determine if it was adequate for the purpose for which it was requested, and who would then inform the supervisor of whatever it is the supervisor needs to know. But there is no such requirement. The Act and EEOC’s regulations do us a disservice by suggesting that it is a violation of its regulations for an immediate supervisor to obtain and evaluate medical information. The regulations make sense if the medical information is obtained by the agency separate from the immediate supervisor (e.g., perhaps through a periodic monitoring program or a pre-employment medical examination), but they do not make sense in the more typical situation in which a supervisor needs medical information to make a decision about an employee’s day-to-day rights and requests.
Three closing thoughts on this topic and then I’m off to do whatever it is normal people do on weekends.
- If you are going to have medical personnel screen medical information, be sure they are trained in the law of disability accommodation, leave use, and Medical Inability to Perform removals. Their evaluation should not be a medical determination in a non-legal vacuum.
- Whoever does the screening should understand that they are not bound by the employee’s physician’s conclusions. Just because the employee’s doctor says that the employee suffers from post-traumatic stress disorder and needs to telework fulltime forever does not mean you have to lie down and provide telework. You are free to probe alternative accommodations with the employee, obtain an explanation from the employee as to how PTSD symptoms are alleviated by telework, and perhaps even to challenge the diagnosis of PTSD, see EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (ADA), paragraph 11, for suggestions on what constitutes “sufficient” medical information. (Be careful; this guidance is from 2008 and predates the recent amendments, although EEOC must feel it still worthy as the Guidance is currently maintained on its website.) [Editor’s Note: Bill is correct that the Guidance has not been updated since passage of the ADAAA. For the most part, the Guidance remains good but watch out for portions of the Guidance that use the pre-ADAAA standards for assessing what constitutes a substantial limitation of a major life activity. Hopefully, the good folks at EEOC will get around to updating this Guidance soon.]
- EEOC occasionally uses the term “functional limitations” to distinguish among certain medical facts. I find it quite handy and recommend it to you. For example, if the employee submits a doctor’s note that says, “Please provide Mr. Wiley an accommodation. He has a bulging intervertebral disc that makes it impossible for him to stand more than five minutes,” the disc diagnosis is “medical information” that must be maintained confidential and the standing problem is a “functional limitation” that can be divulged to line management under EEOC’s regulations.
Plugging that Gap
By Ernest Hadley
Oh, those dreaded medical exam and inquiry provisions of the ADA, not to mention its confidentiality provision and the independent requirement that medical records be kept on separate forms and segregated from other personnel records. Yep, I get it. It can be difficult stuff to comply with. That’s why every time I teach these topics, I pound the drum: “Training your frontline managers is critical. Most often by the time a situation gets to ER, HR, EEO, or us legal-type folks, the die is cast. If your frontline folks don’t know what they can and can’t do, they’re likely to do a whole lot in that ‘can’t do’ category.”
So, first let’s talk about a few of the reasons that’s true and then move on to a few things that agencies can do to prevent these types of violations.
Medical exam and inquiry, confidentiality and record segregation cases are, if you’ll excuse the term, black and white. What I mean by that is that intent isn’t an element of a violation. The agency has either complied with the statutory requirements or it hasn’t, plain and simple. Second, a violation isn’t contingent on the employee’s response. As an example, if a frontline supervisor asks an employee if he or she has a disability, whether there is a violation doesn’t hinge on whether the employees answers the question in the affirmative or negative. It’s the question itself that constitutes the violation. Finally, these provisions of the ADA apply to everyone and not just to individuals with disabilities. Supervisors who don’t understand this latter point can end up inadvertently violating the ADAAA by thinking it doesn’t matter what you ask someone who doesn’t have a disability. Inadvertent the violation may be, but see point No. 1.
Here are a few examples of how the rules apply and how easy it is sometimes to have inadvertent violations even where the supervisor’s intent is good and also how easily correctable they are if supervisors are well trained. Consider the following, and for all you hardened agency folks out there, suspend your disbelief and assume that the doctor’s note is genuine, and for all you hardened employee representatives out there, suspend your disbelief and assume that the supervisor’s sentiments are sincere.
Betty has two weeks of accrued sick leave and has just been diagnosed with ulcerative colitis. Betty presents her supervisor, Sue, with the following note from her physician:
Betty is currently under my care and will require surgical treatment. The surgical treatment and recovery period will be two weeks, at which point she should be able to return to full duty.
Bill’s very much into the practical and so am I. So, here’s the first practical question. What else does the supervisor need to know? Sue now knows that Betty is being treated for a medical condition, that condition will require hospitalization and recovery that will take two weeks and she should then be able to return to full duty. Will knowing that Betty has ulcerative colitis in any way help Sue decide whether to grant or deny the leave? Frankly, unless there’s some reason to doubt the doctor’s note and we’ve assumed it’s genuine for purposes of our little hypothetical -- see below for faked doctors’ notes -- Sue has all the information she needs. In other words, Sue has the information that is job-related and consistent with business necessity -- the parameters for ADA medical inquiries -- to make her decision.
There are all sorts of reasons why Betty may not want Sue to know the actual condition. Maybe she feels embarrassed by the condition; maybe she doesn’t want to be the object of sympathy if her supervisor and colleagues know the diagnosis; maybe she’s just a private person who thinks it nobody’s darn business. It really doesn’t matter what Betty’s reason is, what matters is whether the supervisor has sufficient information that is job-related and consistent with business necessity to make the required decision.
Here's what the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), has to say:
15. May an employer request an employee to provide a doctor's note or other explanation to substantiate his/her use of sick leave?
Yes. An employer is entitled to know why an employee is requesting sick leave. An employer, therefore, may ask an employee to justify his/her use of sick leave by providing a doctor's note or other explanation, as long as it has a policy or practice of requiring all employees, with and without disabilities, to do so.
Notice that the Commission says the employer is entitled to know why the employee is requesting leave but doesn’t actually say that includes the medical condition for which the employee is being treated. Again, folks, we’re still dealing with a situation where there is no reason to doubt the authenticity or veracity of the doctor’s note. Notice also that Betty has the sick leave she is requesting accrued and, as we teach during Absence & Medical Issues Week, if Betty is incapacitated for duty and has the accrued leave, she is entitled to use it. There’s no need for any reasonable accommodation analysis for two reasons. First, Betty is not requesting leave beyond that which she is entitled to and the short duration condition does not suggest that it may be a disability.
Now, let's tweak things again. Betty has just been diagnosed with breast cancer and will need several weeks of leave for treatment that will include a combination of accrued sick leave and leave without pay. Betty presents her supervisor, Sue, with the following note from her physician:
Betty is currently under my care. As part of her treatment, she will need to be hospitalized for six weeks. She will also need two weeks for recovery at the end of her hospitalization, at which point she should be able to return to full duty.
The note still doesn’t reveal Betty’s condition, but Betty tells Sue the reason she needs the treatment is that she has been diagnosed with breast cancer. Well, there’s no violation here because Sue hasn’t done anything to elicit the information. But she does now need to keep it confidential unless Betty gives her permission to disclose it.
Now, as we are wont to do, let’s tweak the hypothetical a bit and, of course being the sympathetic supervisor Sue immediately asks when she looks at the note and before Betty can say anything, “What’s wrong? Is there anything I can do?” A violation? Now, I don’t think so. Even if she doesn’t use the magic words, Betty is asking for a form of reasonable accommodation and we know that for two reasons. First, Betty is asking for leave beyond the accrued sick leave she is entitled to, and second, the duration of the treatment and recovery is sufficient to suggest that the condition might rise to the level of being a disability. Now, what’s considered job-related and consistent with business necessity changes a bit. The agency is entitled to sufficient information to determine if Betty has a disability and is entitled to accommodation. So, requesting a diagnosis and prognosis to insure the condition rises to the level of substantially limiting a major life activity and is of sufficient duration to be considered a disability is job-related and consistent with business necessity.
Could Sue grant Betty’s request without asking for a diagnosis and prognosis? Sure, the ADA doesn’t require employers to request medical information. It simply sets parameters for when employers can ask for medical information.
Let’s now move on in our hypothetical once again. Betty voluntarily tells Sue that she has been diagnosed with breast cancer and Sue sends out the following email to all of her subordinates.
Betty is going to be on leave for a while. Unfortunately, she’s been diagnosed with breast cancer and will need to undergo treatment. I think it would be a great idea and good for Betty’s morale if we take up a collection to send her flowers and let her know that we’re all thinking of her and wish her the best.
Unless the supervisor has Betty’s permission to make this disclosure, this has ADA violation written all over it.
On the other hand, here's a perfectly acceptable way to accomplish the same thing:
Betty is going to be on leave for a while. Unfortunately, she will be in the hospital for some much needed treatment. I think it would be a great idea and good for Betty’s morale if we take up a collection to send her flowers and let her know that we’re all thinking of her and wish her the best.
The Commission has very consistently held that in order for a disclosure to violate the ADA, it must be specific in terms of actually disclosing the medical condition.
So, what are the so-called easy solutions here? First, don’t ask for more than is necessary to make the specific employment decision at issue and, second, once you have medical information, keep it confidential.
Look, I could go on forever with permutations here and how the correct response varies with different factual scenarios. That’s one of the reason we spend so darn much time teaching this stuff and Deryn Sumner and I will be doing a webinar Dealing with Medical Issues Under the ADA, on Thursday, May 29th.
Yep, I get Bill’s point about the dichotomy the statute creates, but there are lots of good reasons for keeping medical information out of the hands of supervisors and putting it in the hands of medical professionals. Oh, and many of those small agencies that don’t have anything in the way of a medical unit also don’t have much in the way of legal staffing either. So, what do they do? They obtain private counsel like me and Bill to advise and represent them in these matters. Spending a few of those bucks on frontline supervisor training and medical advice might actually be a savings in the long run.
FLRA Policy Wishes Cannot Supersede the Law
By William Wiley
Negotiability. As we have learned in our FLRA Law Week seminars when we get to this topic in the agenda, the word "negotiability" strikes fear into the hearts of some practitioners, confusion into the minds of others, and abject boredom into everyone else in the room. The concept has no counterpart in private sector law under the National Labor Relations Act. And many would say that it is the most subjective topic to be found anywhere in the broad field of federal employment law, this writer included.
For those of you uninitiated into the arcane world of federal labor law, a quick primer. In the private sector, management has to bargain just about any proposal made by the union:
Union negotiator -- We propose that the company president come to work naked.
Management negotiator -- We counter-propose that he works in the nude while on telework.
Union negotiator -- We declare an impasse. Strike at midnight. Picketing at dawn. Somebody call CNN!
In the federal sector, when establishing the legal rights of employees to unionize, Congress decided that there are some things that agency management simply does not have to bargain. Those topics are characterized as "non-negotiable" and the legal analysis that determines whether this characterization applies is called "negotiability."
The issues that Congress specified in the law that are not negotiable are called "management rights." For example, the law says that an agency may not bargain away its management right to hire, fire, or assign work. If a union proposed that an agency not fire anyone, the management negotiator would declare the proposal nonnegotiable because it conflicted with a specific statutory management right. Any disagreement between the union and management as to what is negotiable is resolved by FLRA if either party to the disagreement files a negotiability appeal.
To balance things out, although management does not have to bargain management rights issues, the law says it has to bargain "appropriate arrangements" for employees adversely affected by the exercise of a management right. For example, management would not have to bargain a union proposal that the agency not conduct a RIF because conducting a RIF is a management right. However, management would have to bargain a union proposal that prior to running a RIF, employees would be given two hours of official time to update their employment history so that their RIF options can be properly evaluated. Time to update an employment history would be an "appropriate arrangement" for individuals about to be subjected to a RIF.
But what if the "appropriate arrangement" proposed by the union significantly interfered with the agency's ability to exercise its management right? For example, what if in a RIF situation the union acknowledged that running a RIF was a management right, but proposed that prior to releasing anyone from his position, the employee would be given 10 years notice? Would that arrangement be negotiable as "appropriate"?
In federal sector bargaining, there are two levels at which management can declare a union proposal to be non-negotiable:
1. At the local bargaining table when the union presents its proposal, and
2. At the headquarters level when the agency head reviews the locally-bargained contract for illegality (if you're unfamiliar with these levels of federal sector bargaining, you'll have to come to the famous FELTG FLRA Law Week seminar to learn these basics).
Over the years as FLRA conducted its review of negotiability appeals, the Authority came up with two different standards of appropriateness. For bargaining at the local level, FLRA said that a union proposal would be an inappropriate arrangement if it "excessively interfered" with a management right. For a negotiability determination being made at the agency head review level, FLRA said that a union proposal with be an inappropriate arrangement if it caused the agency to “abrogate" its management right. In my simplistic mind, I would say that "excessive interference" was maybe seven to eight degrees of interference on a one-to-ten scale, and "abrogation" was at the nine-plus level on the same scale. FLRA was saying that it felt it was good policy that the headquarters review level should have a significantly higher burden to kick out a union proposal based on excessive interference with a management right than would a frontline local negotiator.
Recently, the DC Circuit Court of Appeals had to remind the Authority majority that its job is to apply the law, not to decide what the government's labor policies should be. Although having different standards of negotiability at different levels in the bargaining process might be good policy, the court determined that it was not good law. Finding no rational basis in the language of the statute for making a distinction between a local bargainer's authority to declare a union proposal non-negotiable and an agency head's authority to make the same negotiability determination, the court sided with the dissent of Member Beck, declared this double-standard to be improper, and remanded the case to FLRA for it to declare which of the two competing "appropriate arrangement" standards should be controlling. Treasury, IRS v. FLRA and NTEU, DC Cir. No. 12-1456 (January 3, 2014).
I’m in a Muddle over Sex
By Ernest Hadley
Got your attention with that title, didn’t I? And now you’re expecting some salacious article, aren’t you? Shame on you! This is a family publication. Besides, it’s highly unlikely that salacious article would have made it past your agency’s spam filter anyway. But not to entirely disappoint this is an article about sex; that is, sex as in gender, though there’s a bit of sex in it, too. Am I peaking your interest and teasing sufficiently before growing to a point? (Bonus points for anyone catching the Shakespeare reference there.)
So what this article is really about, more or less, is a case I came across recently -- Complainant v. Social Security Administration, EEOC Appeal No. 0120131065 (January 24, 2014). (By the way, have I said recently how stupid I think having all cases captioned “Complainant” is?) Here’s what happens. The complainant, for lack of a better name, is an African-American female. She goes to work one day and a coworker, again for lack of a better name, who is an Hispanic female lifts up the complainant’s skirt and grabs her buttocks. She, the coworker that is, then laughs and says, “You thought it was the security guard, didn’t you?” Got the picture?
So, the complainant files an EEO complaint alleging a hostile environment based on race and sex. After an investigation, the agency issues a final decision finding no discrimination because it took prompt and effective corrective action and, therefore, was not liable for any hostile environment. With me so far?
The Commission affirms the FAD and notes that “Complainant has not described any action that was either based on or related to her race and hence any claim of harassment based on race must fail.” I’m good with that, but then it goes on to say “[w]ith regard to sexual harassment, however, the actions described are severe enough to qualify as prohibited sexual harassment.” Again, I’m good with the sufficiently severe part, but where’s the sex? No, I’m serious. Pulling up someone’s skirt and grabbing her buttocks may well be sexual, but where is there any indication in this scenario that the conduct is based on sex as in gender?
I think there’s something missing here. The complainant has to demonstrate that the unwelcome conduct is based on a protected category -- in this instance gender. Now, the Commission told us almost two years ago in the Macy case -- Macy v. Attorney General, EEOC Appeal No. 0120120821 (2012) —that transgender status is protected as part of Title VII’s prohibition on sex discrimination. (How dumb would that sentence sound if I said “in the Complainant case?”) It keeps coming up just short of saying the same thing with regard to sexual orientation but has defined gender stereotyping in such a way that it really encompasses all complaints based on sexual orientation. For example, in Veretto v. Postmaster General, EEOC Appeal No. 0120110873 (2011), it said the complainant, who alleged he was harassed after announcing his marriage to another man, was not only alleging sexual orientation discrimination not covered by Title VII, but gender stereotyping covered by Title VII for failure to conform to the traditional male stereotype. I don’t really get the distinction since a male being attracted to other males strikes me as the essence of being gay. And, then there was Castello v. Postmaster General, EEOC Appeal No. 0120111795 (2011), rev’d on recon. 0520110649 (2011), applying the same logic to a claim by a lesbian complainant.
I’m on board with all that. What I’m looking for the in Complainant case is that same connection to sex as in gender. Granted, pulling up a woman’s skirt and grabbing her buttocks is a really stupid thing to do whether you’re male or female. And, of course, it’s sexual. In my estimation, the perpetrator should have been fired instead of made to watch a few sexual harassment videos and transferred so I question the Commission’s conclusion that the agency’s action was effective. But that’s beside the point because we don’t get to that question unless there’s a hostile environment within the purview of Title VII.
I’m just not getting the connection here and that’s why I’m in a muddle about sex.
Oh, yes, the bonus points? A Midsummer Night’s Dream, Act 1, Scene 2 and the following exchange between Peter Quince and Nick Bottom:
QUINCE: Here is the scroll of every man's name, which is
thought fit, through all Athens, to play in our
interlude before the duke and the duchess, on his
wedding-day at night.
BOTTOM: First, good Peter Quince, say what the play treats
on, then read the names of the actors, and so grow
to a point.
Fake Doctors’ Notes
By William Wiley
In companion articles in this edition of our FELTG newsletter, we discuss some of the challenges with the EEOC’s regulations when it comes to actually applying the Commission’s interpretation of the Americans with Disabilities Acts and the amendments appurtenant thereto (this is my Continuing Legal Education credit certification month; I have to use a lot of legal-sounding words so the California bar actually thinks I paid attention in those classes). In this article, I want to talk about one of those hush-hush little “secrets” of real life in the federal workplace, a topic that some people simply wish did not exist, and which EEOC doesn’t really help with: fake doctor’s notes.
“What!” you exclaim. “Falsified medical certification! Why, no one would do that in the federal government and it would be really hard to do even if you tried.”
Oh, Pollyanna. You are so sweet. And I bet you still put that tooth under the pillow when one falls out and wish really hard when you see the first star of the evening, knowing that’s the kind of wishes that get granted. I hate to break it to you, Kiddo, but there’s some bad stuff out there in the real world, and fake medical certification is part of it.
Well, pray tell; where would one obtain said fraudulent medical excuses if one were to seek such documentation, say to justify a reasonable accommodation request or to support a request for sick leave or excused absence under the Family Medical Leave Act? Why, I do declare; is it possible that such malfeasance might be located where all the cool stuff can be found these days … on the INTERNET?
And of course, the answer is yes. Google “fake doctors notes” sometime and you’ll find that there are a number of electronic entrepreneurs who have figured out that there’s money to be made in selling customized medical certification to those in need (along with fake resumes, pretend former-employers, doctored-up performance evaluations … all kinds of neat pieces of paper to trick your boss into thinking things about you that aren’t true.) [Wiley note to Ernie and Deb; if this training business doesn’t work out …]. So if you think it’s hard to get a medical certificate that says you have elephantiasis and must telework so you can constantly be near an unlimited supply of peanuts, drop $59.95 on a web service and you’ll be able to print out a fine looking doctor’s note tonight.
Alternatively, if you’re a cheapskate as am I, if you know how to manipulate the fonts on a word document and insert a graphic you copied from a website, you can make yourself some fine looking letterhead and thereby construct your own medical documentation. Why just today I received my weekly delivery of FOIAed documents from MSPB and therein (California bar CLE credit = 1 minute) I found a medical certificate on nice-looking easily-duplicated Department of Veterans Affairs letterhead attesting to the fact that Ed Employee suffers from post-traumatic stress disorder and should be allowed to displace all his more senior co-workers and work only the day shift, thereby avoiding assignment to the dreaded night shift. The note is four sentences, no legal mumbo-jumbo, and is signed by someone identified as a “clinical psychologist.” You could easily crank out a hundred of these things in about an hour, one for every person in your book club if that’s the kind of person you are.
And don’t get me started on real doctors who will create relatively genuine medical certification. Fortunately, most physicians are fine, upstanding, ethical people who would never stretch a diagnosis to accommodate the wishes of a patient. But if you think that there are none out there, you missed the big 60 Minutes expose on Medicare fraud last year and haven’t been reading about the bogus disability claims filed after 9/11 in New York. I personally observed a physician sit down next to a patient in a busy waiting room many years ago and overheard a conversation that went something like this:
MD: Bobby Joe, I hear that they’re giving you a hard time at work.
BJ: [In a slow drawling voice] Yessir, they’s making me do all sorts of things I don’t want to do.
MD: Would you like me to write a note for you?
BJ: Why, I would be mighty appreciative of any he’p you can gives me.
MD: [Whipping out a note pad to start writing] What should the note say?
BJ: Well, suh, the note should say, [speech cadence doubling] “Bobby Joe has increased thirst, frequent urination, unexplained weight loss, increased hunger, and tingling of his hands and feet. His hemoglobin A1c test -- also called HbA1c, glycated hemoglobin test, or glycohemoglobin -- is elevated above clinical maxim levels of tolerance. He suffers from cold sweats, trembling hands, intense anxiety, and a general sense of confusion. As an accommodation of his disability, he should be allowed to telework with flexitime, ad infinitum.”
MD: Wait, slow down. I’m a doctor, not a damned stenographer! [Mutual laughter as the scene fades to black]
As Ernie and Gary Gilbert teach in FELTG’s exciting EEOC Law Week seminar, an individual meets the legal definition of having a “disability” if she has:
1. A physical or mental impairment
2. That substantially limits
3. One or more major life activities
The Americans with Disabilities Act Amendments Act was intended by Congress to reduce the focus in a reasonable accommodation situation away from an argument over whether the employee meets the definition of disabled to whether the employee’s functional limitations can be accommodated. I have no problem with that intention when it comes to broadening the definition of what constitutes a “substantial limitation” or a “major life activity.” However, if it means that EEOC expects agencies to take whatever medical information the employee provides without an independent means of ascertaining the validity of that documentation, agencies will be “accommodating” some people who are not truly disabled. Or maybe not even really sick.
And Real Ones
By Ernest Hadley
I’ve got no tolerance for folks who would falsify medical documentation in ways that Bill describes above, or in any other way for that matter. I have an equal amount of tolerance for so-called medical professionals who will write whatever a patient tells them to, regardless of whether there’s medical support for what they write.
Unlike Bill though, my lack of empathy has virtually nothing to do with the fact that an agency may get duped into giving an accommodation to an employee who doesn’t deserve one. No, my lack of empathy is what such conduct does to the many individuals that do have legitimate disabilities.
You see, I accepted long ago that when it comes to agency training, Bill’s more popular than me. First, he’s just a more likeable guy than I am. (What’s that old blues song? “Only my mother loves me and she could be jiving me, too?”) But I also get that Bill’s the one who tells you how to get rid of folks who can’t or won’t conform their conduct or performance to acceptable standards and then hide behind some faux medical condition as an excuse, and I’m the one who chides you for not doing what’s required in the workplace for those with legitimate needs due to a medical condition.
I raise all this because there is a flipside to employees who falsify medical documentation and that’s the agency ER, HR and legal-type folks who see falsification in every piece of medical documentation submitted by an employee. If you think these folks don’t exist than you’re as much of a Pollyanna as those who would believe that employees never falsify medical documentation. I know these folks exist because they self-identify every time I teach a course or webinar on medical exams and inquiries, the ADA and reasonable accommodation.
And it’s because both sets of these folks exist that other folks who struggle to overcome the physical and mental limitations of their disabilities every day have one more hurdle to overcome—the perception of others that they are looking for something they don’t deserve. And so, at some agencies, they are required to jump through endless hoops being asked for more and more medical information and having the medical information they provide questioned. In addition to not getting the needed accommodation, they’re humiliated by the process.
The answer here isn’t that agencies should be forced to accept all medical documentation at face value any more than the answer is that agencies should be permitted to independently verify all medical documentation submitted by employees. As in most cases, the answer lies somewhere in the middle.
Nothing in the EEOC’s regulations or guidance precludes an agency from questioning the validity of medical documentation when it has a reason to do so. (Yes, that’s my emphasis.) Again going back to what the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), has to say about the issue:
Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation. Documentation also might be insufficient where, for example: (1) the health care professional does not have the expertise to give an opinion about the employee's medical condition and the limitations imposed by it; (2) the information does not specify the functional limitations due to the disability; or, (3) other factors indicate that the information provided is not credible or is fraudulent. If an employee provides insufficient documentation, an employer does not have to provide reasonable accommodation until sufficient documentation is provided.
(The bold is the Commission’s, the italics are mine.)
So, it’s really quite simple. An agency can question the validity of an employee’s medical documents if it can point to some factor that calls the validity into question. And, the fact that it comes from the employee’s physician is not, standing alone, one of those factors. Again, here’s a little nugget from the Enforcement Guidance:
An employer should be cautious about relying solely on the opinion of its own health care professional that an employee poses a direct threat where that opinion is contradicted by documentation from the employee's own treating physician, who is knowledgeable about the employee's medical condition and job functions, and/or other objective evidence. In evaluating conflicting medical information, the employer may find it helpful to consider: (1) the area of expertise of each medical professional who has provided information; (2) the kind of information each person providing documentation has about the job's essential functions and the work environment in which they are performed; (3) whether a particular opinion is based on speculation or on current, objectively verifiable information about the risks associated with a particular condition; and, (4) whether the medical opinion is contradicted by information known to or observed by the employer (e.g., information about the employee's actual experience in the job in question or in previous similar jobs).
So, by all means, go after the SOB’s -- that’s a legal term -- who perpetrate this kind of fraud and, in the process, give good people a bad name. But don’t, in the process, give good people a bad name.
The Paternity Test Results are In!
By Deborah Hopkins
The third time’s the charm: it’s the final installment of interview tips and tricks to live by. In the previous two FELTG newsletter articles I discussed interview skills, dos and don’ts, plus a few strategies to help you land that dream promotion. Today, I’d like to cover some supplementary suggestions to assist you during your next big interview.
Body language says it all. In a past life, I taught a college course in nonverbal communication. Nonverbal communication not a science, but most scholars agree that at least 70-80 percent of what you say during an interview isn’t your words at all. You are constantly sending messages whether you like it or not, so it’s wise to be aware of what you’re emoting to the person across the desk or conference table. Here are the top body language signals to be aware of: eye contact; smiling; upright posture (Tip: sit toward the front edge of your chair and lean slightly forward to indicate engagement and interest); fidgeting or making other manipulations such as clicking a pen or jingling pocket change; playing with one’s hair; crossing the arms over the chest; using too few or too many hand gestures. There’s so much to remember, I know, but these are behaviors you can practice before an interview, perhaps during meetings and even phone calls.
Potpourri category. Get business cards from everyone you meet so you can send follow-up notes to each of them. Eat before you get to your interview -- but don’t eat anything garlicky or oniony that may revisit at an inappropriate time. Don't look at your watch during the interview, because it makes you look like you’re in a rush. Ask the hiring manager to show you the workspace so you know where you’ll be working. At the conclusion of the interview, let the interviewer know if you want the job -- and if you don’t -- because that saves everyone a lot of time.
Don’t make these (common) mistakes. If you don't get called back after the interview, you may already know why you weren't the top pick. But, many of us leave an interview feeling positive about the experience, so when we don’t get the call we’re left baffled and disappointed. Hiring managers are paid to be judgmental of job candidates, so stay away from the red flags that stop them from making you an offer. Here are just a few behaviors that approximately HALF of all hiring managers have seen during an interview: appearing disinterested during the interview; dressing inappropriately; acting arrogant and overconfident; badmouthing current or previous employers; answering a cell phone or texting during the interview. Yes, texting during an interview. Can you imagine?
Don’t make these (uncommon and horrendous, but-actual real life) mistakes. Some mistakes are minor and can be overlooked, because after all, we’re all human and things happen. I once sat down to interview a candidate for a job and during the interview my stomach growled so loudly that the interviewee couldn’t help but laugh. I didn't take offense, but instead saw that she had an appropriate sense of humor, and the interview continued.
However, if you've made one of following mistakes in an interview (what I might call an epic fail), here's some advice: don’t do it again. These are some of the most outrageous mistakes candidates made during job interviews, as reported by hiring managers to BusinessInsider
• Applicant warned the interviewer that she "took too much valium" and didn't think her interview was indicative of her personality
• Applicant acted out a Star Trek role
• Applicant answered a phone call for an interview with a competitor
• Applicant arrived in a jogging suit because he was going running after the interview
• Applicant asked for a hug
• Applicant attempted to secretly record the interview
• Applicant brought personal photo albums
• Applicant called himself his own personal hero
• Applicant checked Facebook during the interview
• Applicant crashed her car into the building
• Applicant popped out his teeth when discussing dental benefits
• Applicant kept her iPod headphones on during the interview
• Applicant set fire to the interviewer's newspaper while reading it when the interviewer said "Impress me"
• Applicant said that he questioned his daughter's paternity
• Applicant wanted to know the name and phone number of the receptionist because he really liked her
See? After reading the above, you probably realize your last interview flub wasn’t so bad. If nothing else, learn from your mistakes and vow to do better the next time you’re in the interview hot seat. And with that, we conclude the series of Interview Tips to Live By. Go forth and acquire that dream job - as long as you’re sticking with us in the federal employment law arena. We’d miss you too much if you left us for someone else.
Only eight more shopping days until Valentine’s Day and for all of you out there wondering what to get me, let me just say that I believe chocolate is a health food and bourbon is the nectar of the gods. And the best part is that they go well together.
We occasionally have something with chocolate for an afternoon snack at our courses. Sorry, we tried serving bourbon once and, well, we don’t talk about what happened any more, mostly because no one really remembers. If you’re really interested, though, in finding out some things worth remembering, here are a few of FELTG’s upcoming events. Take a look at the agendas for the upcoming DC programs MSPB Law Week March 3 - 7, EEOC Law Week April 7 - 11, or Legal Writing Week May 5 - 9. Or, join us in Honolulu for Civil Service Week May 12 - 16. Also, check out our upcoming webinars on Performance Problems and Attorney Fees, or our multi-part supervisor training series on holding employees accountable. And if all else fails, bring one of our instructors to your agency or union, and he or she will teach you whatever you want to learn about!
Back to our regularly scheduled newsletter. Read and enjoy.
Another Visit to a Potential Problem Area
By William Wiley
We’ve warned you about this issue before from a theoretical position. Now we’re starting to see the practical implications of the problem.
The issue is the multi-level reviews of tentative disciplinary actions that some agencies have put into place in an effort to contort themselves into conformance with the new rule that MSPB has developed regarding consistency of penalty. As you’ve heard us whine many times, the line of cases that began in 2010 that says that a penalty selection has to be consistent with other penalties meted out for similar misconduct ANYWHERE IN THE AGENCY GOING BACK MAYBE FIVE YEARS is extremely harmful to agency management’s ability to hold employees accountable.
In response to this line of decisions, a few agencies have developed multi-tiered reviews of proposed removals (thereby taking away from the frontline supervisors the ability to make decisions) in the hope that with many people involved at many levels, perhaps the agency can defeat a claim of disparate penalties. Here’s a typical review scheme being used in some agencies that have gone for the multi-level approval process:
1. Supervisor proposes removal
2. Employee Relations Specialist (ERS) advises
3. ERS team leader concurs
4. Supervisory ERS agrees
5. Director of Human Resources concurs
6. Staff attorney in legal approves
7. Supervisory attorney concurs with recommendation
8. Various important and powerful line managers and advisors thereto at HQ say it’s a “Go!”.
The removal approval process in your agency might not be quite this extreme, but you probably have at least a couple of people involved in the decision. With your own agency’s review process in mind, take a look at a document demand I recently received from an Office of Special Counsel (OSC) attorney/investigator. OSC is involved in the case because the employee claims the removal is actually in reprisal for whistleblowing.
Dear Mr. Wiley:
Thank you for your response. As I mentioned in my last email, I would like to request additional information as part of OSC’s investigation into the allegations of possible prohibited personnel practices. This Request is made pursuant to the authority contained in 5 U.S.C. §§ 1212, 1214, 1216 and 1303 and in Civil Service Rule 5.4 (5 C.F.R § 5.4). Please provide the following information:
1. The names and position titles of the individuals who participated in Mr. X’s removal;
2. All notes, documents, and correspondences (including emails) pertaining to the decision to remove Mr. X;
3. All the information and documents considered in the decision to remove Mr. X;
And do you know what OSC is going to do with all those documents generated by all those people? That’s right; screen every one of them looking for evidence of a prohibited personnel practice (PPP). Hey, that’s their job, and they do it very well. In addition to screening documents, OSC may also be interested in interviewing and taking sworn depositions from all those individuals who comprise the discipline review and approval process. Wouldn’t you if you were assigned to root out a PPP and your job was to protect the poor victim?
We have said it before, and we will say it again. We wish that our business was not like this. Frankly, I think we have a better civil service when we have more people involved in making the decision to remove someone. Doing so brings a lot of great minds into play with a variety of experiences, thereby reducing the chance that a single rogue supervisor will do something unwarranted. Unfortunately, the reality of our business is that the more people you involve in a decision, the more people who have to defend what they did (before OSC or elsewhere), and the more likely it is that somebody along the way will say something -- if I may use a legal term -- stupid.
So if you feel you must maintain a multi-layered approval process for removal actions, it’s perfectly legal to do so. Just be aware that you are not contributing one gosh darned thing to the effort to ensure penalty comparability, you are divesting frontline management of the accountability to run the place, and you will be bussing a lot of folks over to the local OSC office (or to the employee’s attorney’s palatial suite) to be deposed, if that’s what they want you to do.
If you think this is a non-issue, it is. At least it is until you get a nice little document demand from one of those rascals over at OSC or a discovery request from a smart appellant’s attorney prior to a hearing. And if you need even more convincing, consider this. When I warn agency officials in our seminars about the challenges they create for themselves when they set up multi-layered review processes, my good friend and co-presenter Brother Ernie Hadley (who has made a right-decent living for 25 years representing employees) just stands there with a big grin on his face, encouraging class participants to ignore my advice and to develop discipline approval procedures with as many review levels as humanly possible.
Need I say more? I certainly hope not. If you don’t get it by now, may OSC have mercy on your reviewing officials.
Watch Those Family Histories
By Ernest Hadley
One of the questions I sometimes get when talking about the Genetic Information Nondiscrimination Act is on the order of, “So what? I mean, my agency doesn't go around collecting genetic information on employees and applicants.” And it’s easy enough to think that. After all, when’s the last time you were asked for a DNA sample as part of the job application process?
The problem is that it’s a lot easier for an agency to collect genetic information than you may think. GINA defines genetic information as including “the manifestation of a disease or disorder in family members of such individual.” 42 USC 2000ff(4). That, standing alone, doesn’t seem to mean very much and it doesn’t, or wouldn’t, but for the Commission’s GINA regulations. Elaborating on what a manifestation of a disease or disorder in family members means, the Commission says “Manifestation or manifested means, with respect to a disease, disorder, or pathological condition, that an individual has been or could reasonably be diagnosed with the disease, disorder, or pathological condition . . . For purposes of this part, a disease, disorder, or pathological condition is not manifested if the diagnosis is based principally on genetic information.” 29 CFR 1635.3(g).
So, how does an agency end up with genetic information given this definition? All the agency has to do is ask for a family history. That’s exactly what Founders Pavilion, Inc., a former New York nursing and rehabilitation facility, did as part of its post-offer, pre-employment medical exams of applicants -- a move that recently cost the company $370,000 to settle a civil action brought by the EEOC.
Asking for a family medical history is reasonably likely to result in the disclosure of the manifestation of a genetic disease or disorder of a family member and violates GINA. That’s part of my long-standing beef with 5 CFR 339.104, OPM’s medical qualification regulations that have been in effect since 1978, which continues to list a history of medical conditions as documentation that can be requested. That, along with most of the other things listed in the regulation like x-rays, lab results, MRI’s and clinical evaluations, walks agencies right into a GINA violation as well a violation of the Americans with Disabilities Act.
And, as I’ve said before this stupid -- yes, it is stupid -- regulation starts with the admonition that “Accommodation means reasonable accommodation as described in 29 CFR 1613.704.” My oldest daughter, who graduated from college almost two years ago, was two when Part 1613 was replaced by Part 1614.
But, agencies can end up with genetic information even if they don’t ask for it directly as the Founders Pavilion did. Health care provides routinely include a family history section in their reports. Why? Well, to those folks, family history can be particularly important in diagnosing or treating a condition. So, when the agency asks the employee for documentation of a medical condition, the employee goes to the provider. Instead of writing a response specifically for the employer, the provider simply gives the employee an existing medical report which, of course, includes a family medical history and “viola,” we have a violation of GINA.
The Commission does give employers an out, however. If the following language is included in a request for medical information, an employer is not liable under GINA even if the health care provider does include family history in the information provided:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
29 CFR 1635.8(b)(1)(B).
In some ways the shame for Founders Pavilion is that it did get things right up to a point. It did not request the family histories until after it had made an offer of employment. The ADA permits medical exams and inquiries of applicants but only after they are given conditional offer of employment; that is, if the employee fulfills the conditions of the offer, he or she has he job. So, Founders Pavilion requested the family history at the appropriate point in the application process, but then blew it by asking for too much information.
That’s one of the big “so what’s” of GINA and it’s something to watch for because addressing GINA violations is one of the six national priorities in the EEOC’s Strategic Enforcement Plan.
The Most Frequent Question I Hear
By William Wiley
We here at FELTG are honored to get all sorts of participants in our FELTG seminars, from wage grade union folks trying to figure out how to do a better job representing employees to MSPB Board members, trying to figure out what planet we come from. But I have to say with all due respect to my colleagues, I think that my favorite group to work with is frontline managers.
The first reason is that if they’ve signed up for one of our seminars, they almost always want to be there. It’s not otherwise part of their job like it is for legal counsel and HR specialists. These are usually smart people with a thousand other things to be doing to run the government who choose to come listen to the tricks of this crazy business of federal employment law.
The other reason that I really like working with real-world supervisors is that a number of them are in difficult situations with difficult employees that they are trying to hold accountable. To make it worse, some of them have been picking up relatively dodgy legal advice from the advice-sphere that permeates the federal workplace (like dark matter). When we here at FELTG show them the light, they are often so darned grateful that they spring for the beer at the end of the session. And to Ernie, Deb, and me, that really means a lot. Heck, we wish they’d spring for the beer DURING the session. Why should only one hour in the day be happy?
Invariably when I get into talking about the difference between a misconduct removal and an unacceptable performance removal, once they begin to appreciate the differences between the two procedures, one of the participants will say, “My (fill in the blank) advisor told me that it’s better to take a misconduct removal than a performance removal. It sounds like you’re saying that it’s really the other way around, that a performance removal is preferable to a misconduct removal. Why are you wrong?”
Oh, those little troublemakers. Me, wrong? On a matter of employment law? Ha, ha, ha, I think to myself, mindful that there was a time that I thought that a 752 misconduct action was indeed preferable to a 432 performance removal. Then, as I developed a little experience, around the fall of 1979, I began to see the light. When Congress invented the 432 procedures, they were trying to make it easier for agencies to remove nonproductive employees. And they did a good job of it if you understand how a 432 removal differs from a 752 removal:
1. To win an appeal in a performance removal, a supervisor needs to present only “substantial” evidence. To win an appeal in a misconduct removal, the supervisor needs a “preponderance” of the evidence. By legal definition, substantial is a LOWER evidentiary burden than preponderance. In a misconduct case, the judge has to agree with you for the removal to be sustained. In a performance case, the judge does not have to agree with you, she only has to conclude that you may be right (even though she might really think that you may be wrong).
2. In a misconduct removal, the supervisor has to defend the penalty by proving by a preponderance of the evidence that it is reasonable; i.e., by completing a Douglas Factor analysis. In a performance removal, the supervisor does NOT have to do a Douglas analysis and defend the penalty. The Board can lower the penalty in a misconduct removal to a suspension, but it cannot mitigate a performance removal. And today especially, we are having a big problem with our current MSPB in how the members evaluate Douglas factors.
3. In a misconduct case, you have to use the evidence that has already occurred IN THE PAST; e.g., what exactly did the employee say when he allegedly made the threat, who witnessed it, how did the threatened person respond, etc. In a performance case, the supervisor gets to create the evidence IN THE FUTURE as the PIP progresses. Trust me; it’s a lot better to create good evidence prospectively than it is to retrospectively try to prove facts from evidence that was generated randomly.
So when I get that suggestion in a class that I might be wrong about 752 v. 432, I just give a little mental hug to the poor supervisor who has been given inexperienced advice. I’m happy to explain to just about anybody who will listen why a 432 action is a much better way to go (in most situations) than a 752 action if you have a choice.
Then, I put a big crease in his graduation certificate, as a visible reminder that he should never doubt me again. Hey, nobody ever said I’m a nice guy.
Clarifying the Counselor’s Role
By Ernest Hadley
Ok, last issue I had some not so positive things to say about the proposed revisions to EEOC Management Directive 110, so here is something positive about the revisions that are currently undergoing an internal agency comment process. The Management Directive would provide some much needed clarification on the fact-finding duties of the EEO counselor in the precomplaint phase. This is an area that I spend some considerable amount of time focusing on when I do EEO counselor training and it’s good to see that, at least on this point, the Commission and I are in agreement.
By regulation, counselors have 30 days from the request for counseling to complete the precomplaint phase. That’s not much time especially because the request for counseling can, depending on the agency’s process, precede the initial interview by several days, further cutting into the time the counselor has. Time wasted on unnecessary fact gathering adds to the counselor’s workload and also takes time away from critical duties such as early resolution efforts.
Part of the problem is that the existing guidance has been somewhat vague on the nature of counselor fact-finding. The reality is that a complete investigation will take place if a formal complaint is ultimately filed. So, for years, I’ve been preaching that counselors need to engage in limited fact-finding geared to gather what I call the “qualifying information,” e.g., is contact timely, is this an employee or applicant of the agency, is there some underlying employment action or term or condition of employment involved, is the employee alleging a basis within EEO purview, and that the remainder of fact-finding should be focused on those things that might assist in resolution of the complaint.
Well, here’s what the proposed guidance has to say about the role of the counselor in terms of fact-finding:
Once the EEO Counselor has determined the basis(es) and claims adhering to the guidance set forth below, s/he should conduct a limited inquiry. The purpose of the limited inquiry is to obtain information to determine jurisdictional questions if a formal complaint is filed and is performed regardless of whether the aggrieved person subsequently chooses ADR. The limited inquiry also is used to obtain information for settlement purposes if the person chooses EEO counseling over ADR, or does not have the right to choose between EEO counseling and ADR.
While the scope of the inquiry will vary based on the complexity of the claims, the inquiry is intended to be limited and is not intended to substitute for the in-depth fact finding required in the investigative stage of formal complaint process. The EEO Counselor must at all times control the inquiry. If the aggrieved person or agency personnel raise objections to the scope or nature of the inquiry, the EEO Counselor shall seek guidance and assistance from the EEO Officer or Director. If the EEO Counselor has problems with the inquiry, s/he should immediately notify the EEO Officer or Director.
There’s also an appendix dedicated to suggestions on how the counselor should conduct the inquiry. This really is a positive addition to MD-110. Now, about that eight-hour annual training requirement. . . . You really think that’s enough?
The Employee Who Emails God
By William Wiley
Those with experience in this field have seen it sooner or later: the employee who has been soooo horribly mistreated and is soooo much in pain that he just has to tell his story and ask for help from everyone he can think of. Because all those important people must be deeply concerned about his personal welfare and actually have been standing by waiting for his request for help:
“Oh, look; an email with HIGH PRIORITY in the subject line! It appears that poor Master Wiley is being mistreated by his mean old nasty supervisor. That darned supervisor is reprising against him and creating a hostile environment by actually requiring poor Master Wiley to be at work on time and do his job. Well, we’ll have none of that in this government. Quick: get our emergency response team of lawyers, counselors, and investigators right down there to collect the evidence we need to get rid of that supervisor. Thank goodness Master Wiley brought this horrible situation to our attention.”
(And then President Obama returns to running the country.)
Back in the 70s when I started this work, I’d see this in the form of a letter written by a disgruntled employee to the President or some member of Congress. The letter was sometimes dribbled down the chain to little old me to respond to as the frontline guy who knew the situation. And my responses were almost always the same: “Dear Mr. President: Thank you for bringing this difficult situation to our attention. As the Regional Representative for the Department of the Navy, I can assure you that we treat all of our employees with respect, dignity, and in conformance with all applicable laws. I will personally investigate this matter and inform you directly should there be any merit to these claims.” My response thereby gave the President cover to respond that he had looked into the matter, I could then get on with my attempt to stack my business cards into a multi-storied house of cards, and life was good.
Then, along came email. All of a sudden we went from an unhappy employee with pen and paper sending off an occasional letter to an unhappy employee being able to electronically cc: hundreds of agency managers, members of Congress, reporters, bloggers, members of the clergy, and blessed deities with personal complaints about alleged workforce mistreatment. Fortunately, most all of those folks have better things to do than get involved with an employee’s personal problems delivered via a cc: on an email, but still – the disruption to the agency could warrant action.
For those who have completed our famous MSPB Law Week seminar or participated in our onsite seminar and webinar series for supervisors entitled UnCivil Servant: Holding Government Employees Accountable for Performance and Conduct, you know the answer to this situation. Give the employee an order to stop bothering people with emails about personal problems (i.e., create a rule). Once that rule is put into place, if the employee breaks the rule, you initiate the engine of progressive discipline, and that will take care of that.
Surprisingly, every now and then I run into an agency employment law practitioner who thinks an agency cannot restrict employees this way; that somehow, the employee has a “right” to email God and everybody about every little perceived slight and injustice that occurs in the workplace, regardless of how disruptive that might be. Well, that’s just not the law. If the employee’s scatter-shot emails (or phone calls or carrier pigeons or whatever) are disruptive, certainly you can direct him to stop. Your nexus to government efficiency is that he is bothering a bunch of people with his personal problems. Federal employees have proper channels for raining personal gripes and grievances, but that doesn’t mean they get to bug everybody they think might help them
There are two caveats to this, however. First, our friends over at OSC get real testy if they believe that an agency is doing something that has a chilling effect on an employee’s right to report waste, fraud, and abuse. To protect yourself, you probably want to include the following statement on any order to stay within channels:
“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.” 5 USC 2303(b)(13).
OSC might take the position that ANY restriction, even with this statutory warning, has a chilling effect. However, if I were an agency representative, I would not want to give that up without going to the mat with the Board. It would be just crazy to say that any employee at any time can disrupt anyone about any perceived slight, as long as the slight fell within the definition of what constitutes whistleblowing (come to our MSPB Law Week seminar if you don’t know what that is). The law itself says it’s OK to enforce a shut-up policy as long as you include the above statement.
The second caveat comes into play relative to the content of the complaining emails that the employee-with-too-much-free-time is sending around. If the employee’s complaints are allegations of civil rights discrimination or disclosures that constitute whistleblowing, then ordering the employee to stay within proper channels can be the basis for a claim of retaliation, either before EEOC or OSC. That shouldn’t stop you, of course. Just be prepared to defend your order by establishing that the emails are disruptive and that the employee is free to pursue complaints through the channels provided for by law.
And now, I have to get back to my stack of cards.
How Not to Handle an Official Time Request
By Ernest Hadley
EEOC regulations, at 29 CFR 1614.605(b) provide that a complainant who is an agency employee is allowed a reasonable amount of official time to file and process a complaint and, if represented by another agency employee, the representative also is allowed a reasonable amount of official time for representational purposes.
As general rule, complaints over official time are not handled through the EEO complaint process at 29 CFR Part 1614. See, e.g., Culpepper v. Postmaster General, EEOC Appeal No. 01A61407 (2006) (claims of denial of official time should not be processed under section 1614.108 because focus is not on agency’s motivation in denying official time, but whether agency violated Commission’s official time regulations).
The proper procedure for denying a request for official time is set forth in MD–110 at 6–17:
If the agency denies a request for official time, either in whole or in part, the agency must include a written statement in the complaint file noting the reasons for the denial. If the agency’s denial of official time is made before the complaint is filed, the agency shall provide the complainant with a written explanation for the denial, which it will include in the complaint file if the complainant subsequently files a complaint.
If otherwise unresolved at the agency level, the administrative judge can address the issue if a hearing is requested or it can be addressed by the Office of Federal Operations on appeal. In fact, the Commission also has case law indicated that since the right to official time for representational purposes flows from the complainant’s rights, it is the complainant who is aggrieved by the denial of official time and not the representative. See, e.g., Zych v. Secretary of Air Force, EEOC Appeal No. 01A11131 (2002).
Complaints over official time filed under Part 1614 procedures should be dismissed for failure to state a claim.
But, in Complainant v. Social Security Administration, EEOC Appeal No. 0120130682 (January 17, 2014), the Commission found that the agency erred when it dismissed a complaint over denial of official time by a federal employee representing another federal employee in an EEO complaint where the basis alleged was reprisal for protected activity. The complainant representative in that case alleged that a supervisor refused to sign an official time form starting he was too busy and also refused to allow the representative to leave the form with him for signature later. He further alleged that the supervisor made him wait 30 minutes to sign the form and then asked him “Whose time are you on, yours or ours?” When the representative responded that he was on agency time, the supervisor replied “I know how to handle this.” Finally, he alleged that his own supervisor threatened to place him on AWOL when he returned to his workstation because of the length of time he was gone.
So, why accept this claim for denial of official time while rejecting others? Actually, there is a difference and that difference is that the allegations involve more than just the denial, or in this case, the delay in granting official time. Here, the complainant alleged that the agency combined other actions with that delay, such as the comments made the first supervisor and the threat of AWOL by the representative’s supervisor. That the Commission found was reasonably likely to deter protected activity, such as engaging in EEO representation.
So, if you’re going to deny those official time requests, do so with a smile.
Do I Really Have to Send a Thank You Note?
By Deborah Hopkins
In the last edition of the newsletter, I provided a few tips on interview practices if, for whatever reason, you find yourself looking across a table or desk at an interviewer. Since there are far too many suggestions to fit into one article, I’ve added a Part II, if you will. So, just for the interviewee, I present to you a few additional matters to consider.
Don’t underestimate the value of eye contact and a firm handshake. There are all kinds of studies -- scientific and non-scientific -- on first impressions in interviews. According to numerous reports and surveys, about half of all employers know within the first five minutes of an interview whether a candidate is a good or bad fit for the position. It only takes an additional 10 minutes for another 40 percent to determine if a candidate has staying power, which means that almost 90 percent of hiring managers know within the first 15 minutes if the person they’re interviewing will fit the job posting within the organization. Put another way, the initial handshake/pleasure-to-meet-you introduction is the one and only chance you get to make a first impression. During and after the handshake, maintain bouts of eye contact throughout the interview. If that feels too intense, look at the spot directly between the interviewer’s eyebrows, as this will give the illusion of eye contact without making you feel like a creeper (that’s a legal term).
Now, let’s go back to the handshake for a moment. At introduction, a firm handshake, combined with direct eye contact and a slight smile, sends a message of confidence, respect and competence. In researching for this article I came across one study that reported 27 percent of interviewees offered weak handshakes when meeting hiring managers, while five percent were too forceful and gripped too hard come handshake time. Wow, who knew how serious a simple handshake could be? Just run a Google search if you need tips on how to properly shake someone’s hand -- there are numerous articles (some quite lengthy) on the topic. Also, be sure to shake the interviewer’s hand and say thank you at the conclusion of the interview.
Don’t provide a generic resume. Resumes take work to properly complete. Resumes should be specifically targeted to the job for which you’re applying. I suggest take a few extra minutes to be sure your resume is organized in a way that highlights the experience and education relevant to the job for which you’re interviewing. If it’s a training position, put your training experience front and center. If it’s a management position, highlight your supervisory experience. Bring extra hard copies of your resume to the interview, in case you’re surprised with a panel of interviewers who haven’t been given copies. Also, keep a copy for yourself in case you need to reference resume specifics the interviewer may ask you to speak about. If you believe the results from a recent CareerBuilder study, 39 percent of hiring managers had recently interviewed someone who showed up to an interview appearing completely uninformed about the organization and/or the desired job. A specialized resume will reduce your chances of being part of that 39 percent.
Follow-up. Always, always, always follow up an interview with a thank you message to the interviewee, preferably within 24 hours (or one business day) of the interview. In our increasingly informal and technologically-driven world, an email is probably appropriate. But, if you really want the job, a handwritten thank you note will say more about your character and sincerity than will an email.
Special note: Even if you decide you hate the organization, don’t want the job, and never want to set foot in the building again, send a thank you note. If you’re not interested in the opportunity, it’s polite to say so, provided you use professional language (for example, “I don’t think this position is a good fit for me.”) because the world of federal employment law is small, and you may run across the interviewer again, at another agency. Never burn your bridges!
Stay tuned to the FELTG Newsletter for one last edition on interview tips, including what to wear (and what not to wear) and common mistakes you’d do well to avoid in your quest for that next position.
Whoo, hoo! We have almost nine full months with a budget that includes a modest -- can one percent be accurately described as “modest”?; other words come to mind like “paltry” -- raise for federal employees. My memory is not what it used to be, but I’m having a hard time remembering when we last had such a stretch. But my memory is good enough to recall when years, even fiscal years, had 12 months. Oh well, the years do seem to get shorter as I get older and I guess this is just one more example of that.
But, the good news is that now you can plan to attend your favorite FELTG training. Unlike Congress, we’ve got a full 12-month year planned and here are some of our upcoming events. Webinars continue to be a big draw for practitioners and supervisors alike, so check out our upcoming sessions on Performance Problems and Attorney Fees, or our multi-part supervisor training series. If you prefer face to face, take a look at the agendas for the upcoming DC programs MSPB Law Week March 3-7, EEOC Law Week April 7-11, or Legal Writing Week May 5-9. Or, join us in Honolulu for Civil Service Week May 12-16. With so many options, something’s sure to be a perfect fit for your training needs.
For now, it’s time for some news. Read and enjoy.
Green Light for Agency Defense Counsel
By Ernest Hadley
I’d like to think that I have just enough in the way of humility to admit when I’m wrong. Of course, I’m also just arrogant enough to believe that the fact that a federal agency takes a different position on an issue doesn’t mean that I’m wrong. It just means that I was on the wrong side.
And so it appears to be with the case with the proper role of agency defense counsel in the EEO process. Proposed revisions to EEOC Management Directive 110 have been circulated to agencies for comment and the Commission has given the green light to agency defense counsel to actively participate in an investigatory process that is supposed to be “impartial and appropriate.” 29 CFR 1614.108(b).
Let’s start by stating what this isn’t about. This isn’t about the integrity of agency defense counsel. It’s about the integrity of a system that lets an agency investigate its own alleged misconduct and, in some cases, issue a final decision on those allegations. And, as readers of our humble little publication know, I’ve been nothing if not consistent in my position that that agency defense function has no part in conducting an impartial investigation.
To be honest, the proposed rules for participation of agency defense counsel during the counseling and investigative stages of an EEO complaint are an attempt to “split the baby” by allowing agency defense counsel to participate but limit their role. But before we get to the proposed rules -- we’ll do that in the article below entitled The Rules of the Game -- let’s talk about the Commission’s rationale for the rules.
If there’s a legal rationale underpinning the new rules, it isn’t provided in the draft of MD-110. There’s no reference to statutes, legislative history, regulations or case law. What we get in the introduction to the new rules is simply this:
It is important to note that prior to the issuance of the final agency action, the agency is responsible for the fair, impartial processing and resolution of complaints of employment discrimination. Only when the employee opts to move the matter to the Commission or U.S. District court, does the process become adversarial for the agency. The primary role of an agency representative in the EEO process is to provide diligent representation to the agency in the adversarial portion of the process.
Federal agencies thus have a unique role to play in ensuring equal employment opportunity. First, every agency head has a statutory obligation to eradicate unlawful employment discrimination that may occur within the agency. This anti-discrimination responsibility is what requires federal agencies to administer a fair and impartial investigative process designed to determine the validity of complaints, as well as to employ affirmative efforts to root out discrimination and ensure equal employment opportunity. The Director of the Office responsible for the agency’s EEO programs within the agency (or other comparable representative) is designated by the agency head to carry out this obligation.
At the same time, the agency head has a fiduciary obligation to defend the agency against legal challenges brought against it, including charges of discrimination. The General Counsel of the agency (or a comparable legal representative) is designated by the agency head to carry out this obligation.
Some may view the agency’s investigative process as inherently biased because the agency accused of discrimination is the same agency that is charged with administering the EEO investigative process. But the statute requires that an agency conduct a fair and impartial investigation and issue a “final action” on a complaint of discrimination, and Commission regulations establish a comprehensive system through which agencies must issue these final agency actions. Nevertheless, as the Commission’s regulations make clear, and as this management directive reinforces, a federal agency head is obligated to protect both the integrity of the agency’s EEO process and the legal interests of the agency.
Hard to argue with the general proposition. Any agency head has the dual obligation of enforcing the laws of this country and shielding the agency from financial liability. But the mere fact that there are competing obligations does not mean they are equal obligations. Call me crazy, and many have, but I happen to think the obligation to shield the agency from financial liability is subsidiary to the obligation to comply with the law and enforce it when there’s noncompliance.
Isn’t that what the first paragraph of the Commission’s introduction says? During the agency processing phase, the obligation is to develop an impartial and appropriate factual record. In other words, the obligation is to determine if the agency has complied with the law. The adversarial process and obligation to shield the agency from liability doesn’t kick in unless or until the case moves to the EEOC or U.S. district court. Presumably at that point, the agency has made a determination based on an impartial investigation that it is indeed in compliance with the law.
Seems to me that’s what I’ve been saying all along. There’s no role for the agency defense function when the agency is investigating itself to determine if it engaged in discrimination. But somehow without any legal analysis, or at least any that were given an insight into in the proposed MD-110, the Commission uses that rationale to come to the conclusion that agency defense counsel do have a role in both the counseling and investigative process.
But that’s okay because the proposed MD-110 beefs up the language requiring that the EEO director be a direct report to the agency head, a requirement that’s been in MD-110 since 1999 and we all know how that’s worked out. (By FY 2011, only 74 percent of EEO directors reported to the agency head.) Oh yes, and the EEOC will monitor compliance with its regulations and management bulletins and may, if it does not secure compliance by writing to the agency head, publicize noncompliance by “using, among other means, publication in the Annual Report to Congress, a press release, posting some form of notice of non-compliance on the Commission’s public website, or any other means the Chair deems appropriate.”
Of course, there probably won’t be any mention of the agency head by name since that would be contrary to the new policy of not telling us anything about who’s involved in the complaint decisions of the Office of Federal Operations.
Maybe this is for better minds than mine. I take back what I said at the beginning of this article. The Commission didn’t split the baby. They gave it two heads. And, who wants a two-headed baby?
The Rules of the Game
By Ernest Hadley
For those who just finished my rant in Green Light for Agency Defense Counsel, or decided to skip it and just find out what the proposed rules are, here we go. The rules are set out in a series of 16 questions and answers. Here are some of the highlights or lowlights, depending on your perspective.
The first rule is nothing new. Agency defense counsel can participate in settlement efforts during precomplaint counseling. (Oh, and by the way, the Commission still refers to this as the “informal stage” even though its regulations call it precomplaint counseling and there’s nothing “informal” about. Don’t timely initiate counseling, and raise all the matters with the counselor, there goes your “formal” complaint. Doesn’t sound very informal to me.) The current version of MD-110 allows for both the complainant and agency to be represented during ADR and, as I’ve said before, that’s as it should be. The official binding the agency in a settlement should have access to legal counsel who can advise on the potential and extent of agency liability, affirm that all the negotiated terms are included and clearly expressed in the agreement and that the agreement is legally binding.
Agency defense counsel are permitted to accompany a “management official” to meet with an EEO counselor if the management official so requests. “The agency representative may advise the management official of his or her rights and responsibilities and represent the agency’s interest in facilitating resolution of the complaint.” But the counselor should not defer to counsel or permit counsel to interfere in the performance of the counselor’s duties. (There’s absolutely no mismatch between an EEO counselor and the Office of General Counsel.)
A couple of no-brainers. Agency defense counsel are not permitted to be involved in decisions about whether to accept or dismiss a complaint or to determine the bases and issues in a complaint, and may not give advice to the EEO office “unless requested to do so by the EEO office.”
As a general rule, agency defense counsel does not have a right to review documents collected by the investigator because “[t]he investigative process is a non-adversarial fact finding process.” The investigator has the right to determine what documents are necessary for an appropriate investigation and has the discretion to disclose documents and testimony to witnesses gathered during the investigation, including the affidavits of the complainant and other witnesses. “However, if a witness is a management official, such official may consult with agency counsel for information to assist the official in responding to the inquiry.” (Hmm? Just wondering here what “information” agency defense counsel has that would assist the witness who, presumably, is the one who knows what happened. If counsel has such “information,” wouldn’t he or she be a witness?) Also, an agency cannot require that management officials’ responses be reviewed or approved by agency defense counsel. (And wondering here if that means agencies can simply make known that it would be greatly appreciated if such review or approval were obtained and what effect that might have on the decisions of such management officials.)
And, as with precomplanint counseling, agency defense counsel may accompany the Responding Management Official (RMO) to the investigative interview with the same parameters including the admonition that the investigator “should be careful not to defer to the counsel/representative during the interview.” And, I have the same questions about the practicality of that admonition.
“Management officials” who are not RMO’s can also be accompanied by agency defense counsel to the investigation interview if the management official so requests. The proposed rule does make clear that counsel represents the agency and not the manager and “if a manager requests an agency representative, the agency should consider whether the agency’s and manager’s interests coincide.” Management officials can be advised, but agency defense counsel “may not ask questions, make objections, or otherwise play a defensive role for the agency.”
Curiously, agency defense counsel may not accompany “non-managerial” employees who are not the subject of the complaint to the investigative interview. Those employees can bring private counsel to the interview at their own expense.
Why do I think it’s curious? Here’s the scenario. A management official who has nothing to do with the action at issue – didn’t take it, didn’t recommend it, maybe even had no knowledge of it – is asked to meet with the investigator in a retaliation case. That official has heard the RMO make disparaging comments about employees who have filed EEO complaints.
What does that official want to know from agency counsel? I would suspect something along these lines. “Do I have to meet with the investigator? Do I have to respond to his or her questions? Do I have to tell the investigator what I know or only respond to the investigator’s questions? What are the consequences if I don’t tell the investigator what I know? What are the consequences if I do tell the investigator what I know?’
Now what does the non-managerial employee who has overheard the same comments want to know? I’m thinking roughly the same things.
So, either the answers to these questions fall into the range of personally advising the management official or the answers fall into the range of advising an individual on his or her responsibilities to the agency. If this is personal advice, why should a manager get it at agency expense while the employee has to pay for it? And, I have basically the same question if it advises on the responsibilities of being an agency employee.
Agency defense counsel may not review a Report of Investigation before it’s issued, but if the complainant is given an opportunity to review then so must agency counsel. Agency defense counsel also may not review a final agency decision before it’s issued. “Each agency must provide sufficient resources for its EEO office in order to ensure the legal sufficiency of its final actions. As noted above, the optimal situation is for the EEO office to have sufficient internal legal resources to draft final agency actions.” Agency defense counsel can be involved in decisions on appealing decisions of EEOC administrative judges and asking the Commission for reconsideration of an appellate decision.
Them’s the rules, or at least the proposed ones.
One final thing I’m wondering. How much input did EEOC defense counsel -- yes that agency also has to investigate and defend itself against EEO complaints -- have into these proposed rules? If you ask me, the rules seem weighted in favor of defending the agency and against getting an “impartial” investigation.
EEOC Ethics 101 Quiz
By Ernest Hadley
Time to sharpen your pencils, or your pens if you prefer, though that can get kind of messy. It’s time for a FELTG ethics quiz.
So under the proposed rules for agency defense counsel in the draft revisions to MD-110, counsel may advise management officials who are not RMO’s -- i.e., are not accused of engaging in discrimination. Are the communications between agency defense counsel and these management officials protected by privilege?
The most obvious answer is that those communications would be protected by attorney-client privilege. Of course, the most obvious answer isn’t always the correct answer. Both the District of Columbia and Virginia bars have disciplinary rules and ethics opinions dealing with who in a government agency is a “party” for purposes of the prohibition against counsel contacting an opposing party without the knowledge and consent of agency counsel. Those rules would suggest that the answer is that the privilege does not extend to such communications.
Let’s start with the basics. In order for there to be an attorney-client privilege both things must exist. There must be both an attorney and a client. Virginia Rule of Professional Conduct (RCP), 4.2, Comment  provides:
In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons in the organization’s “control group” as defined in Upjohn v. United States, 449 U.S. 383 (1981) or persons who may be regarded as the “alter ego” of the organization. . .
That “control group” is, in turn, defined as “any employee of an organization who, because of their status or position, have the authority to bind the corporation.” Id.
D.C. Bar Opinion No. 80 reaches a similar conclusion defining a “party” to litigation as:
[O]nly those persons who have the power to commit or bind the government with respect to the subject matter in question, whether it be the initiation or termination of litigation, execution or approval of a contract, issuance of a license, award of a government grant, or a rulemaking function. . .
D.C. Bar Opinion No. 129 specifically refers to an employment discrimination case against a large corporation, and the government is treated as a corporation under the rules, and notes that the officials who can bind the corporation in litigation are likely not the same officials who made the contest employment decision. The opinion says:
[I]nterpreting [the rule] to protect all employees of a large organization would be too restrictive and would conflict with the policy of unhindered and inexpensive access to non-party witnesses in the litigation context. Such a . . .rule would require a party to expend greater time, money, and resources in obtaining the same information through informal interviews. These manifest burdens, we believe, outweigh any potential harm that might flow from permitting counsel to interview employee-witnesses of the sort involved in this inquiry.
So, if we apply these rules and opinions to communications between agency defense counsel and management officials who are not part of the “control group,” it would seem there is no attorney-client relationship and, therefore, there could be no privilege.
Agency defense counsel can also review affidavits from management officials who are not RMO’s. Are any recommended changes subject to privilege? Well, not by attorney-client privilege, so next on the checklist is the attorney work product privilege. Here, I don’t think we need to get into any detailed analysis of the precise parameters of that privilege -- i.e., where is the line between the thoughts and impressions of counsel about the litigation and factual information? As a general rule, privilege can’t be asserted selectively. If it’s waived with respect to one, it becomes fair game for all. So, it would seem sharing any comments on the affidavits of management officials who are not RMO’s with those officials, the privilege is waived.
Getting out the old FELTG 8-ball, which doubles as our crystal ball, I foresee discovery disputes and maybe that’s something the Commission should address up front if the proposed rules become final.
Finally, Some Comparator-Employee Common Sense
By William Wiley
As you recurring readers are aware, this writer had been mightily freaked out by the Obama Board’s modification of the way it will consider a penalty selection defense relative to Douglas Factor 6, the consistency of the penalty on appeal with other penalties meted out by the agency. Starting with a Terrible Trilogy of cases issued in 2010, followed by the addition of an even worse case from 2011 (thereby making for a Freaked-Out Foursome), the current Board majority has undermined what had been a basic tenet of discipline for nearly 50 years. Until 2010, a supervisor was required to be consistent within the chain of command in the selection of a penalty. Post Trilogy/Foursome, the supervisor’s penalty selection was supposed to be consistent with penalties imposed throughout the entire agency, a prospect that anyone with three minutes of employment law experience would know is humanly impossible. [Editor’s Note: For those of you new to FELTG’s Newsletter, Bill is referring to Lewis v. Department of Veterans Affairs, 2010 MSPB 98 (2010); Woebcke v. Department of Homeland Security, 2010 MSPB 85 2010); Villada v. U.S. Postal Service, 2010 MSPB 232 (2010); and Raco v. Social Security Administration, 2011 MSPB 87 (2011).]
In our FELTG seminars, webinars and onsite trainings, and on occasion in this newsletter, we have provided what little guidance we could come up with for agencies in defending a penalty selection when the employee alleges that a comparator employee received a lesser punishment:
1. Argue that the comparator employee indicated by the appellant is not a valid comparator, that either the circumstances or the misconduct are substantively different.
2. Show that even though there is a comparator employee who received a lesser penalty, there were other comparator employees who received the same penalty as on appeal.
3. Establish proof that even though the agency had in the past administered lesser penalties for the misconduct on appeal, it had more recently put employees on notice that in the future it would administer a more significant penalty.
We heard from some agencies we work with that they were considering bumping up penalty decisions to HQ levels, thereby hoping to ensure agency-wide consistency. We offered that even though this might be possible, doing so takes away from front-line management the authority to manage and also opens up those HQ penalty-deciders to allegations of Title VII discrimination, whistleblower reprisal, and being called as fact witnesses in Board proceedings. Those are expensive wages to pay in any agency.
Other agencies with which we work have tried to ensure consistency of penalty by developing agency-wide databases of penalties imposed for various acts of misconduct. We counseled that this was a relatively fruitless effort because the Board will compare misconduct, not just penalized misconduct. In three of the four early lead cases, the Members had looked to employees who engaged in misconduct, but were not penalized at all. An agency would need a nationwide database of misconduct to deal with this issue, and that’s just not possible.
Although we had no case law to base it on, and being absolutely desperate for some way to deal with this craziness, we counseled in our seminars that maybe -- just maybe -- the better approach was not to go out and look for comparator employees, but to limit the exposure of the deciding official (DO) just to penalties within his span of control and his personal knowledge. Although it runs counterintuitive to the agency-wide database approach, we thought that there might be hope in letting the DO make his or her decision based on personal knowledge and experience rather than based on what other managers in other parts of the agency might have done instead. There was a singular flicker of comment in one lead Board decision that the DO was held to what another supervisor had done, even though he did not know about it, because his advisors at HQ had knowledge of the lesser penalty. We reasoned that maybe a lack of knowledge can actually be a positive factor in the right situation.
And so holdeth the Board. In a recent opinion and order in which the appellant alleged that a comparator received a lesser penalty, the Board ruled that not only was the comparator not exactly a comparator (see no. 1, above), but also that the DO testified;
- He did not know of the penalty administered in the other case, and
- Had he been the DO in the other case, he would have imposed a removal instead of the lesser penalty.
So after three years of comparator employees driving us all a little bonkers, the Board has spoken some common sense. Not only is an agency allowed to argue that it believes that a penalty administered in the past was too lenient, but also that the DO in the current appeal had no knowledge of a lesser penalty being administered. Yes, hold deciding management officials responsible for acting in a consistent manner, but don’t place on them the obligation to survey the entire agency each time they are asked to select an appropriate penalty. What a sensible way to close out 2013 for all of us who believe in the civil service and the protections it provides for deserving employees. Thank you, Board. Davis v. U.S. Postal Service, 2013 MSPB 100 (December 31, 2013).
Jury Still Out on Mixed Motive Retaliation Analysis
By Ernest Hadley
It's just a footnote, but one that still leaves the door open. The footnote, No. 8 to be precise, in Complainant v. Office of Personnel Management and Social Security Administration, EEOC Appeal Nos. 0120120901, 0120123038 (December 2, 2013), kicks the can down the road on whether University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), holding that the “but for” test applies to private sector retaliation cases and a mixed motive analysis is not available, applies to the federal sector. Because the Commission found that the complainant had not presented any evidence of retaliatory motive, it also found that the complainant had not established liability “even under the more lenient standard allowing for liability . . .....”
As you may recall, Nassar was one of two decisions handed down by the Supreme Court at the end of its last term -- Vance v. Ball State University, 133 S.Ct. 2434 (2013) being the other -- that rejected the EEOC’s view of Title VII law. Prior to Nassar, the view of the EEOC and several other federal courts to consider the issue was that the complainants need only show that protected activity was a significant or motivating factor in the employer’s action and that the employer could limit its liability to declaratory relief and attorney fees if it could show by a preponderance of the evidence that it would have taken the same action even absent retaliation. Nassar raised the bar with a 5-4 majority holding that the employee must show that but for the protected activity the employer would not have taken the action.
Of course, Nassar was decided under a provision of Title VII that applies to the private sector, 42 USC 2000e-3(a). The federal government is exempt from that provision and, from a plain language point of view, the federal sector provision, 42 USC 2000e-16, includes race, color, sex, national origin and religion and makes no mention of retaliation. Courts, however, including the Supreme Court, have assumed that a general prohibition on discrimination includes retaliation. See Gomez-Perez v. Potter, 128 S.Ct. 1931(2008) (general prohibition against discrimination on the basis of age in the federal sector includes protection against retaliation).
But section 2000e-16 and 2000e-3(a) don't have the same wording. Section 2000e-3(a) makes it an unlawful employment practice to discriminate against an employee or applicant “because” that individual has filed or participating in an EEO complaint or opposed a discriminatory employment practice. Section 2000e-16 says that all personnel actions in federal agencies shall be made “free of any discrimination” based on race, color, sex, national origin and religion.
So, for the time being, we wait to see what standard the Commission will apply in federal sector cases. But the issue is on the EEOC’s radar. All we need to do now is wait for the right case.
One’s Person’s “Clarification” Is Another Person’s “Reversal of Precedence”
By William Wiley
OK, kids, let’s begin this article with one of the favorite tools in our seminars, the famous FELTG Pop Quiz! Here’s your hypothetical scenario to start off today’s program:
The agency reassigned the employee from the day shift to the evening shift. The employee failed to show up for the evening shift (i.e., the employee initiated the absences). QUERY: Has the agency involuntarily suspended the employee?
Those readers who have been around a while or who have graduated from the world-renowned FELTG Absence & Medical Issues Week seminar are probably focusing on who actually initiated the absence: the employee or the supervisor. For over 30 years the case law has been that if the employee absents himself, then it IS NOT an involuntary suspension, but if the supervisor prevents the employee from coming to work, then it IS a constructive suspension (and if the self-inflicted absences exceed 10 work days, the Board will reverse the “action” as an appealable adverse action taken without the due process procedures found at 5 CFR 752).
Applying that old case law principle to this scenario, you would conclude that in this case, the employee initiated the absences by deciding not to come to work, and therefore there is no constructive suspension. And according to our current Board members, you would be wrong. In a decision intended to “overrule, clarify and modify inconsistent case law,” the Board recently held that sometimes an employee-initiated absence may well be a constructive suspension. So all of you seminar graduates, pull out your handout materials and make a pen-and-ink modification to wherever it is that we discussed this ancient principle of Board law. Because it no longer holds. See Bean v. U.S. Postal Service, 2013 MSPB 96.
Of course, the devil is in the details, and for our hypothetical situation we did not give you all the details from the Bean case:
- Bean’s psychologist recommended that he work only daylight hours due to a medical condition that could be triggered by darkness.
- The agency accommodated this medical condition for two years before making the reassignment to the later shift.
- The agency stopped the accommodation because of a determination that the assignment violated the collective bargaining agreement.
Now some employees would have seen a conflict in interpreting a CBA and felt that a grievance or arbitration would have been in order. Others would have seen a possible failure to accommodate a disability and filed a discrimination complaint with EEOC. Bean, wisely, filed an MSPB appeal, a forum that adjudicates not only civil service law, but also discrimination law as well as the interpretation of CBA provisions relative to an action on appeal. In Bean, the Board remanded the case to the judge so that Bean could be provided a jurisdictional hearing to determine whether the agency could have accommodated his disability in spite of the CBA provisions.
Therefore, the new standard for determining whether employee-initiated absences might actually comprise a constructive suspension is this: Did the agency take an action so that the employee “lacked a meaningful choice” as to whether he came to work? And as I read Bean, if there is an accommodation of a disability that the agency could have provided, but did not, then it has denied the employee of a meaningful choice, and any resulting absences are in fact a constructive suspension.
Let’s noodle it through. The supervisor assigns the employee a new job. The employee responds, “My doctor says I should not do that kind of work. I’m going home.” If the employee’s medical condition constitutes a disability, the agency had better do some relatively quick accommodating (or documenting why it cannot accommodate) or it will be found to have constructively suspended the employee without procedures.
Union readers take note. An MSPB appeal is a much faster and cheaper alternative to arbitration or an EEO compliant.
Management readers also take note. You should be in good shape if you can do the accommodation three-step (come to our EEOC Law Week seminar April 7-11 if you need help with this) within a couple of weeks. If you do, you will either have accommodated or documented why you cannot, thereby dodging the “meaningful choice” bullet.
However, if the employee is slow in responding to your requests for medical information and you cannot complete the accommodation analysis in two weeks, you may want to consider proposing an indefinite suspension using 752 procedures. Even though the Board has not specifically approved a situation like this as a basis for an indefinite suspension, the rationale is aligned with the three situations in which MSPB has found indefinite suspensions to be warranted, see Gonzales v. Department of Homeland Security, 2010 MSPB 132. Something like, “By this memo I am proposing that you be suspended indefinitely until you either provide the medical information I have requested so that I can evaluate your medical limitations for the purpose of accommodation, or you return to work.” This stopgap approach at least gives you defensible grounds should the employee challenge the due process aspect of the continuing absences.
What do you think? Will the Board fault the employee for resorting to self-help rather than either challenging management’s interpretation of the CBA through a grievance or by filing a discrimination complaint alleging failure to accommodate?
Nah, I didn’t think so, either.
EEOC and Special Counsel Enter New MOU
By Ernest Hadley
Last week the EEOC and the Office of Special Counsel entered a new memorandum of understanding with regard to cases to be referred to OSC for possible disciplinary action.
The new MOU provides that:
• EEOC shall refer to OSC for potential enforcement action cases in which the EEOC finds that an agency or an officer or employee thereof has discriminated against any employee or applicant for employment.
• EEOC shall refer to OSC for potential enforcement action cases in which an agency fails to comply with an EEOC order and any other case or matter that the EEOC believes warrants enforcement by OSC.
• If the EEOC has indicated that appropriate action has not and will not be taken by the employing agency, OSC may investigate the matter to the extent necessary to determine whether there is sufficient basis for initiating disciplinary action.
The MOU is not all-inclusive and the EEOC may refer other matters to OSC. A complete version of the MOU is available at www.eeoc.gov/laws/mous/index.cfm.
Can I Facebook Stalk a Future Supervisor?
By Deborah Hopkins
It’s January -- the time of year when people make (and promptly forget) resolutions for the coming months. Take the gym as an example. I’m a Spinning® instructor at several gyms and studios in northwest Washington, D.C., and when January comes around, the classes fill up with people who’ve made resolutions to get healthy, exercise more, etc. [Editor’s Note: Who would have thought that “Spinning” is a registered trademark and does that mean I can no longer say, “My head is spinning” after editing the FELTG Newsletter and, if so, do I have to capitalize it?] You might know that I’m a big fan of exercise, so I fully support these resolutions, but one thing I will say: if you make a fitness resolution, be specific. “Get healthy” is ambiguous and difficult to measure. “Attend two fitness classes every week” is specific and measurable. But, since this is not a fitness newsletter, I suppose I should move on to the topic at hand.
You probably have a number of friends, family members or colleagues who, after burning up their vacation time over the recent holidays, are ready to start looking for new employment. What better time than January to spruce up the old resume, check out USA Jobs, CareerBuilder and Monster, and (hopefully) dust off the lucky interview suit and take it out for a spin? After all, it’s cold outside and it’s dark by 4:30 p.m. -- if you live on the east coast, anyway -- so you might as well take advantage of those evening hours on the couch, and search for available employment.
In a previous life, I was Career Services Coordinator at an institution of higher education, and was responsible to help potential and past graduates find gainful employment. One of my favorite job responsibilities was preparing students and grads for professional interviews. Some of the lessons I taught fall squarely into the category of common sense, but others may not be so obvious, especially to people who haven’t been on an interview in a while. And so I’m happy to present a few initial tips on nailing your next interview.
Be specific. I’m guilty of doing the “mass blast” where I’ve sent a generic resume out to anyone and everyone who might have a job I’m suited for. There are a few problems with sending out a nonspecific resume (to be addressed in a later article), but one I’d like to address is when a recruiter from a company receives that resume, and calls for a phone interview. The last thing you want is to take this call but not remember which companies you’ve applied to, or which job the recruiter is discussing. In this situation, there’s a great risk of appearing incompetent and unprepared.
While it’s slightly different in the world of federal employment -- hopefully anyone who gets a call about an HR Specialist job at FBI at least knows what an HR Specialist does, and what the FBI is -- the specifics of job positions should be at the forefront of your mind, so you can effectively respond to the call as it comes in.
Do some recon. When you schedule an interview, know where you’re going, and how long it will take you to get there. Be on time for the interview but don’t be too early. If you arrive more than 15 minutes before the interview time, don’t go in right away; sit in your car, or walk around the block. Arriving too early makes you look overeager, and also puts pressure on the interviewer who knows you’re waiting. It can also make you as the interviewee feel anxious, the longer you wait.
Do some research about the agency or company where you’re interviewing. What is the organization’s mission, and who are its customers? Know these answers before you arrive. It’s also a good idea to see what you can learn about the person you’ll be interviewing with. Google, LinkedIn, Facebook, news outlets, and the organization’s website provide a wealth of material. Be careful in how you use this information; it’s more for background knowledge than anything. Telling a potential supervisor that you recognize her from her Facebook profile picture is NOT the way to land a job.
Be on your best behavior. The interview begins from the minute you enter the facility. There are often parking garage cameras, people watching you while you wait in the lobby or take the elevator. Be nice to security personnel, the front desk receptionist, and any employees you come across, from the minute you arrive until the minute you leave. Be aware of your own actions and your surroundings. Smile, take a deep breath, and go show ‘em what you do!
There are a number of additional factors to consider when interviewing for a new job -- too many to put into one article -- so consider this the start, and look for additional interview tips in coming editions. And as we say at the end of every FELTG training seminar, Good luck out there.
A Closing Thought
By William Wiley
This month, we celebrate the 131st anniversary of the Pendleton Act that established our federal civil service and the 35th anniversary of the implementation of the Civil Service Reform Act that set many civil servant rights into law. Although we here at FELTG are only lowly government contractors, we are honored if we have in any way helped you ladies and gentleman who have taken The Oath do a better job of running our country. Without you, we would not have a society.
I’m trying to decide between two evils. Should I sit here and try to come up with yet another introduction to FELTG’s world famous, or infamous depending on your point of view, newsletter? Or, do I get myself bundled up and go out and begin shoveling the 10 inches or so of snow that has fallen and continues to fall? Well, I’ve never gotten frostbite from typing . . .
It's 2014 and we’re back with our first edition of the New Year and it’s packed with case news, opinions and advice. Whether that’s good or bad we leave to you, but we stand behind this newsletter with our money-back guarantee. That’s right. Don’t like the newsletter? We’ll refund your entire purchase price. In fact, we’ll double it. Of course, that offer is void where prohibited by law, which the last time I looked was in all 50 states and the District of Columbia.
What is not prohibited by law, and in fact even sanctioned with CLE’s from the Commonwealth of Virginia and the State of California, are FELTG’s training courses. So, here are some things that we have coming up in the next few weeks. If you hurry, you can still get a spot in next week’s DC program, Absence & Medical Issues Week. If you’re more of a planner, though, then you can join us in February for the brand new Advanced Legal Writing Week, in Mach for MSPB Law Week, in April for EEOC Law Week, or in May for Legal Writing Week. Or, take a trip to Honolulu for Civil Service Week, also in May. You can find details on program locations, dates, and prices on our website.
So, on to the newsletter, and read and enjoy. Now, about that snow. . .
It’s Alive! FLRA Finally Gets a Full Complement
By William Wiley
After a year of not being able to do much of anything because of two empty seats on the three-membered Authority, President Obama finally got his replacement nominees through the Senate confirmation process, and we now have a complete complement of Authority members. Carol Waller Pope has returned as FLRA Chair and Patrick Pizzella has been appointed as a Member. And man, does it look as if it’s going to be a lively bunch of members. I’ve been at this work approaching 40 years now, and I’ve never seen anything like this from any of the members on an oversight board: CSC, A/SLMR, OPM, FLRA, MSPB, or EEOC.
The first decision issued by this “new” Authority doesn’t plow much ground that hasn’t been plowed before. An arbitrator issued an award that violates GSA’s government-wide regulation relative to limits on reimbursement for moving expenses, so the Authority wisely set aside the arbitrator’s excess. Happens all the time because many arbitrators are unfamiliar with the constraints of federal law. DHS, CBP and AFGE, 67 FLRA No. 26 (December 18, 2013). But what doesn’t happen all the time is that one of the Authority members took the occasion of his first decision to lay out his philosophy of federal labor relations in general. In a long separate Concurring Opinion, Member Pizzella articulated what he expects to be his major focus during his term as an Authority member:
- “The taxpayer is the FLRA’s biggest stake holder” and Member Pizzella intends to interpret the law in a manner consistent with an effective and efficient government.
- The costs for cases before the Authority and before labor arbitrators are borne by the American taxpayer; “It is essentially all taxpayer money – all the time.” In contrast, the costs associated with private sector labor cases are borne by labor unions and businesses. “I cannot ignore this fact” while carrying out the responsibilities of an Authority member. (Hang in there with me, dear reader; do not stop after each point to analyze the actual factual basis – we are looking for the overall labor relations philosophy embodied in this opinion).
- Federal employees were paid more than $155 million taxpayer dollars in 2011 doing union work on government time. Taxpayers are thereby footing the bill for “no shortage of cases that many would describe as frivolous.”
- Of the 4,300 allegations of unfair labor practices brought in FY 12, only 0.003% resulted in a finding that a ULP had actually been committed. (Look, I TOLD you to stop being tied to reality with each of these points; it slows down the overall absorption of the principles being laid out for us). “It is, therefore, axiomatic to me that the filing of what could be considered frivolous grievances unwisely consumes federal resources, including time, money, and human capital; serves to undermine ‘the effective conduct of [government] business.’ [sic]”
- Agencies need to engage in good faith bargaining, unions need to avoid frivolous grievances, arbitrators need to avoid issuing circular incoherent awards, and the Authority needs to refrain from endorsing arbitration awards that are circular and incoherent.
Well, my goodness. Welcome to the party, Member Pizzella. You certainly have let the federal labor relations community know from whence you come. On behalf of all of us who over the past three decades have bargained in bad faith, filed frivolous grievances, and issued or supported incoherent arbitration awards, let me say that because of your Concurring Opinion we now see that we need to change our ways. Yes, from this day forward, the goal of all of us in the federal labor community – on both sides of the table – will be not our own self-interest, but those of an “effective and efficient government,” just like those members of Congress have committed to on Capitol Hill.
And now you readers will have to excuse me. For some reason I cannot quite explain, I feel the need for a big cup of tea.
EEOC: Consistent We Are Not
By Ernest Hadley
It is perhaps the most misquoted of quotes: “Consistency is the hobgoblin of little minds.” Yes, that phrase is contained in a sentence that Ralph Waldo Emerson wrote but it isn’t the whole sentence and the extract stands the meaning of the entire sentence on its head. What Emerson actually wrote is “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”
When it comes to the law and those who decide our cases, consistency is precisely what we want. There’s nothing foolish about it. Consistency is what permits us as practitioners to evaluate cases with some degree of accuracy. It’s what allows us to advise our clients and, in doing so, to foster settlement when appropriate. It’s all about precedents and following them.
Yes, from time to time, precedents get overturned or tweaked and the law develops. Sometimes, the precedents were just bad to begin with, other times they simply fail to account for all the factual permutations that can arise under a certain rule of law. There’s nothing wrong with that and few would argue, except perhaps for a few Duck Dynasty folks, that Plessy v. Ferguson, 163 U.S. 537 (1896) and its separate but equal doctrine should still be the law of the land.
But inconsistency due to not knowing the law of the land, or at least the federal sector, is foolish. And, so it is that I finally come to the point here with the recent case of Complainant v. Secretary of Health and Human Services, EEOC Appeal No. 0120123000 (November 14, 2013). The complainant in that case—and, of course, what else could we call her no longer having even the complainant’s name to go by—alleged discrimination on the basis of sex and sexual orientation, though she declined to identify her sexual orientation. The complainant alleged that one coworker had advised another that the complainant was a lesbian, lazy and the coworker should not offer to help the complainant. (See how much easier that sentence would have been to write, not to mention understand, if these folks actually had names.) The complainant also alleged that coworkers interfered with her work in other ways, including one coworker asked an IT person at the end of a seminar given by the complainant if he had come to bring her a vibrator.
And, here’s the part of the decision that has me all riled up:
At the outset, to the extent that Complainant may be appealing the dismissal of her claim of discrimination on the basis of sexual orientation, we find that such a claim is not within the EEOC' s purview. See Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (December 20, 2011). The Commission has held that Title VII does prohibit sex stereotyping discrimination. Id. (citations omitted). In the present case, however, we note that there is no indication in the record and Complainant has not claimed that she was subjected to any sex stereotyping discrimination.
Is that really the Commission’ view of the law in the federal sector? Well, let’s take a look at what the EEOC says on its website on a page entitled “Facts about Discrimination in Federal Government Employment Based on Marital Status, Political Affiliation, Status as a Parent, Sexual Orientation, or Transgender (Gender Identity) Status”:
The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt. The Commission has also found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011), http://www.eeoc.gov/decisions/0520110649.txt.
Excuse me, but Macy, a case in which the Commission unequivocally held that transgender status is covered under Title VII is now almost two years old. Sexual stereotyping is one way to pursue a claim of sex discrimination, Macy tells us, but there are other ways such as a straight—no pun intended—disparate treatment case.
True, Macy didn’t say anything about sexual orientation because Macy didn’t allege discrimination based on sexual orientation. But, let’s look at the two other cases cited in this decision. In Veretto, the Commission found that an allegation that the complainant was physically and verbally harassed after announcing his marriage to another male in a local newspaper stated a claim within Title VII. The Commission found that the essence of Veretto’s allegation was that he was being harassed because he failed to conform to a traditional male stereotype—i.e., that males should marry females. Similarly, in Castello, the Commission found that the essence of her allegation was that she was being harassed because she failed to adhere to a traditional female stereotype—i.e., that females should be attracted to males.
Now, let’s just think this through for a minute. What is the essence of being gay or lesbian? I don’t exactly claim to be an expert on matters related to sex, but it seems to me the essence of being gay or lesbian is that one is attracted to members of the same sex. That is, by definition, gays and lesbians fail to conform to the traditional sex stereotype—precisely the point of Veretto and Castello, which laid the groundwork for Macy.
And so how is it that the EEOC can say in the Complainant case—oh, how I hate anonymous case names—that, in its view, sexual orientation is not covered by Title VII? The answer is suggested by a slight variation on Emerson’s quote—“Foolish inconsistency is the hobgoblin of all minds.”
I’m all for a little fooling around but when it comes to the law, give me consistency.
[Wiley note: Several years ago the US Office of Special Counsel (under the direction of a now-replaced former Special Counsel) tried to make this same distinction: that the law does not protect a status (e.g., being gay), but it does protect those who engage in behavior associated with that status (e.g., doing gay things like dating people of the same sex as in Castello). It was a silly construct then, and it is today with EEOC. So a word to the wise on the employee’s side of the table. Do not file a complaint when you are mistreated because you are gay; file a complaint when you are mistreated because you do gay things. Under EEOC’s theory, as I understand it, the only gay and lesbian people who are not protected are those who engage only in straight behavior.]
One of the Secrets of Our Business
By William Wiley
Most all of us do it. It’s a part of the skill set that we all need. Some of us think we’re good at it, but most of us aren’t as good at it as we should be. And although it’s a mightly important, valuable tool where the stakes for the government are in the hundreds of thousands of dollars, very few of us have ever been formally trained in how to do it.
What could it be?
Well, as revealed for the first time in detail in a recent report from the Office of Policy and Evaluation (OPE) of the Merit Systems Protection Board, that secret skill is … (drum roll, please):
Cutting a deal.
Yeah, we like to call it “settlement” so that it sounds as if we’re doing something all formal and neutral, but the reality is that when management agrees to give the employee something of value in exchange for the employee leaving voluntarily, or withdrawing his complaint, or whatever, we are using those same skills that the guys use on American Pickers, Pawn Stars, and in used car lots around the country every day. Something for something, quid pro quo, tit for tat – when a management representative agrees to give something to an employee to get that employee to leave voluntarily, she is cutting a deal just like deals have been cut since we as humans decided that trading was better than stealing.
If you have not attended our famous FELTG MSPB Law Week seminar (next offered March 3-7 in DC; operators are standing by), you may be surprised to learn that historically of all the individuals who are removed and file an appeal with MSPB each year, two-thirds withdraw their appeals in exchange for something of value from the agency (i.e., a deal was cut). The OPE report discloses that 95% of agency representatives reported cutting a deal in a Board appeal within the past three years. If you work in federal employment law for an agency, you have probably been trained in the law (e.g., how to craft a charge of misconduct, how to analyze the essential functions of a position) and you have probably been trained in the skill of hearing advocacy (e.g., how to develop a case theory, how to conduct a deposition). However, if you look at these numbers from OPE, the more valuable skill you need in this business is the skill of cutting the deal. You may not know the difference between a PIP and a Douglas factor analysis, have no idea how to object to an evidentiary submission in an arbitration, and still be a success in this business if you know how to settle cases.
Unfortunately, as OPE’s report points out, there is a huge pitfall for the unwary when it comes to cutting a deal to get an employee to go away voluntarily and thereby to avoid an appeal. That pitfall appears in nearly 90% of all settlements of removals, and goes by the name of a “clean record agreement” (CRA). The purpose of a CRA is to benefit the employee by keeping secret the fact that the agency had initiated an adverse action by:
a) Deleting related documents from the record, and
b) Restricting agency management from orally revealing that it had ever thought about utilizing an adverse action with the employee.
The value of this benefit to the employee is obvious. Most employees plan to seek other employment after they resolve the matter on appeal. Most prospective employers would not be interested in hiring an individual who previously had a serious problem as a federal employee. Individuals who bargain for CRAs believe that they will be able to hide their adverse action past from future possible-employers if there are no documents in the record and if the involved management officials keep their mouths shut.
As the report points out, there are significant problems with the agency complying with both of these prongs of a CRA if it is not worded extremely carefully:
Record Documents: Sometimes management will agree in a CRA to rescind or cancel the SF-50 used to implement the removal. What some agency representatives who cut this deal don’t recognize is that language like this means that not just the SF-50 has to be changed but also all other documents that reference the removal have to be found and removed. See Conant v. OPM, 255 F.3d 1371 (Fed. Cir. 2001). In fact, it may even include documents that are not agency documents in the agency’s possession, but rather documents maintained by other agencies. See King v. Department of the Navy, 130 F.3d 1031 (Fed. Cir. 1997); Phillips v. Department of Homeland Security, 118 MSPR 515 (2012). Yeah, how would you like to walk over to the FBI and say, “Give me all your records”?
Oral Communications: Sometimes in a CRA management will agree not to disclose the settlement terms to any prospective employer. What some agency representatives do not appreciate is that this provision also restricts management from acting in a manner that suggests the employee does not have a clean record; e.g., “Wiley? Oh, yes, I used to ‘supervise’ him as much as he could be supervised. Beyond that I cannot answer your questions for reasons beyond my control.” Even if there is no explicit confidentiality clause, the Board might well find the agency in violation of the CRA if it gives out oral information inconsistent with the employee’s agreed-to clean documentary record. See Torres v. Department of Homeland Security, 110 MSPR 482 (2009).
So there’s the secret and there’s the problem. It would be helpful if the Board would just give us sample language that would make sense in a CRA. Unfortunately, as we’ve learned in the past, the Board is very good at telling us what the problems are and what NOT to do, but not what to do because that would be providing guidance and advice – something MSPB shies away from like the plague.
Well, the plague never bothered us here at FELTG. Once more, we step into the breach and risk our substantial legal reputations on what we would recommend you use in a CRA to avoid as many problems as possible while simultaneously being fair to both parties. But for that answer, you’ll have to go to the companion article, “Scrubby-Dubby: Clean Record Sample Language” somewhere else in this edition of our newsletter.
And Now the Case for Anonymous Complainants
By Ernest Hadley
Have you ever had one of those moments where you just wished you could melt into the woodwork and nobody would know you existed? Of course you have. We all have. As a lead into this piece, let me share one of mine.
A long time ago, I did a fair amount of work representing nuclear whistleblowers and, in turn, did a lot of work with the Nuclear Regulatory Commission’s Office of Inspector General. I had a good relationship with the IG and met with him on several occasions. He left the agency and a new IG was named. All I knew of the new IG was what I had read in the paper and that he had a Secret Service and security background.
So, I was asked at meeting with several NRC staffers, whistleblowers and other lawyers who represented whistleblowers what I thought of the new IG.
My response? “Don’t know much about him other than I understand he’s a spook.”
At the next break, I was approached by one of the NRC staffers who asked, “You don’t know, do you?”
“Since I have no idea what you’re talking about, I guess the answer is that I don’t know,” I said.
“The new Inspector General is black.”
I really didn't know whether I should attempt to clarify my comment when the meeting resumed and risk making a bad situation worse or keep my mouth shut. I opted for the latter hoping enough people in the room knew me well enough that the comment would not be perceived as racist.
So, here’s one of the upsides to the EEOC’s new policy of using the generic Complainant in all case decisions. It allows people to do some really stupid things, file complaints over the stupid things they've done and not have to worry about melting into the woodwork.
Here’s an example. In Complainant v. Secretary of Agriculture, EEOC Appeal No. 0121032519 (December 6, 2013), the complainant alleged disability discrimination and retaliation when several accommodation requests were denied and she was placed on leave restriction.
Her first complainant was that the agency failed to accommodate her when it constructed a wooden access ramp while management worked to have a permanent concrete ramp approved. The wooden ramp provided access and there’s no indication that management was delaying in its efforts to have a permanent ramp built. The Commission held, rightly, that the complainant was entitled to a reasonable accommodation and not the accommodation of choice and found no discrimination.
Next, she alleged that the agency failed to accommodate her by not permitting her use of a service dog at work. The disability she alleged was something called myasthenia gravis. Now, I admit that I had to look this one up and here’s what I found on the Myasthenia Gravis Foundation of America website:
Myasthenia gravis (pronounced My-as-theen-ee-a Grav-us) comes from the Greek and Latin words meaning "grave muscular weakness." The most common form of MG is a chronic autoimmune neuromuscular disorder that is characterized by fluctuating weakness of the voluntary muscle groups.
The agency asked for medical information specifically describing how the service dog would assist the complainant in performing her job. Seems like a reasonable request given the lack of an obvious connection between the condition and the accommodation request. The complainant refused to provide any information. Again, the Commission found no discrimination because the complainant had not demonstrated any need for the requested accommodation.
Finally, the complainant alleged discrimination in her placement on a flexible work schedule instead of a “maxi-flex” schedule. Actually, she had been on the maxi-flex schedule, but was continually late or absent without notifying management. Management gave her a cell phone and air card to assist her in contacting management. She lost the phone not once, but several times. (Even my son has not managed to lose his cell phone several times though he did find that bouncing it down the stairs at school was not such a good idea.) Again, the Commission found no discrimination because the failure to report was not related to her medical condition.
You know what? If I was this person, I also would like to remain anonymous.
Scrubby-Dubby: Clean Record Sample Language
By William Wiley
Elsewhere in this edition of our Famous FELTG newsletter, you have probably read a description of the findings of a recent report issued by MSPB’s Office of Policy and Evaluation, “Clean Record Settlement Agreements and the Law,” December 2013. The bottom line is that a poorly crafted clean record agreement (CRA) can cause an agency significant unexpected problems and result in perhaps several years of back pay if a removal action is eventually overturned on appeal.
Although the report does a good job of pointing out problematic language, it does not provide examples of how to settle a case without running into these problems. Knowing no fear and lacking good common sense, we here at FELTG go running into the darkness where no sane person would dare to tread. So without further ado, in priority order, here is how we recommend you settle removals so that you avoid the problems built into CRAs:
1. If possible, do not agree to a CRA. We have been preaching this for at least 10 years in our FELTG seminars because of the dangers so well-articulated in OPE’s report. Explain to the employee two things:
a. You, as the agency representative, are willing to allow him to resign voluntarily in lieu of termination, pay his attorney fees, and maybe throw some cash or administrative leave in the pot to whatever degree you can stomach it. In other words, emphasize those parts of management’s proposal that provide substantial benefit to the employee, separate from any CRA.
b. Given the situation, a CRA really does the employee no good regarding the prospects of future employment. Most federal agencies and many private employers routinely ask job applicants, “Have you ever left a job under unfavorable circumstances?” It would be impossible to honestly answer that question “no” if the settlement agreement resulted in the individual leaving his job. Whether we like it or not, once an adverse or performance action is initiated, any subsequent “voluntarily” separation by the employee because of that action simply HAS to be considered as leaving a job under unfavorable circumstances. Bonus hint: Give the employee and his representative a copy of the OPE report to back up what you are telling them.
2. If the employee either has subpar counsel who doesn’t understand the above or thinks he can somehow fool a prospective employer regarding his unfavorable employment history with the agency, and INSISTS on a CRA, offer the following:
a. You will remove all reference to the removal action form the employee’s Official Personnel Folder (OPF). By specifically limiting the “clean record” to purging relevant documents from the OPF, you avoid the problem of all the other documents that might be around within or without the agency. If the employee wants to add more specific files to be purged, that should not be a problem. But by all means, avoid promising to provide a non-specific “clean record” or to “rescind” a removal.
Sample language: “The agency agrees to remove from the appellant’s OPF the SF-50 documenting the appellant’s removal and instead insert an SF-50 indicating that the employee resigned voluntarily for personal reasons.” And if you can get it, “Except as expressly provided for in this agreement, the appellant waives all rights to seek other records’ adjustments.”
b. As for oral confidentiality, never agree to lie. You can agree not to say anything, or to say only certain things, but never agree to make a false statement on behalf of the employee. In addition, avoid broad statements such as, “The agency agrees not to make any negative statements about the employee.” The better approach is a) to specifically identify who will speak about the employee to outsiders after the CRA is implemented, and b) to specifically characterize what that contact person will say.
Sample language: “The appellant agrees that he will refer all prospective employers seeking employment information only to General Counsel Ernest Hadley or his designee. Mr. Hadley agrees to provide only the employee’s prior position title, grade, salary, and to state that the employee’s separation from service was voluntary.” See Godwin v. Department of Defense, 228 F.3d 1332 (Fed. Cir. 2000). And if you can get it, “The parties acknowledge that the agency must respond fully and truthfully regarding those matters required by law or public policy to be disclosed.” See Fomby-Denson v. Department of the Army, 247 F.3d 1366 (Fed. Cir. 2001).
CRAs are replete with potential problems for agencies as well-described in the OPE report (MSPB is to be congratulated for producing such a valuable analysis). Not only is a poorly drafted CRA easy to breach, but the breach damages can be significant, perhaps resulting in several years of back pay. It is imperative that counsel on both sides of the table understand the potential pitfalls in this area so that any settlement truly is a meeting of the minds.
Wanted: Quality Investigations
By Ernest Hadley
I try to be a good boy and keep up with cases as they come out. But it isn’t always possible—both being a good boy and keeping up with cases. Sometimes I can be a good boy and not keep up with cases. Other times, I can keep up with cases and not be such a good boy. Then, of course, sometimes I actually do manage to do both. As a former baseball player, I always figure that one out of three is pretty good. After all, how many players do you know with a .333 average?
This is also the time of year when thoughts, if not actual effort, turns toward the next edition of A Guide to Federal Sector Equal Employment Law and Practice. That means that I pick up some of the cases I missed along the way.
Here’s one that I either missed, or it simply didn't attract my attention when I first saw it. (I know it’s hard to believe, but sometimes my eyes just gloss over when reading EEO decisions. Oh, right. Like it’s never happened to you reading one of these articles?) The case is King v. Commissioner, International Boundary & Water Commission, EEOC Appeal No. 0120114319 (2013).
So, first things first. I didn’t know there was such a thing as the International Boundary & Water Commission. But a quick internet search assures me there is and its mission is “to provide binational solutions to issues that arise during the application of United States - Mexico treaties regarding boundary demarcation, national ownership of waters, sanitation, water quality, and flood control in the border region.” In FY 2012, it employed 261.7 FTE’s.
Now, I don’t want to pick on a small agency. It seems like it may actually be a good place to work. It has had no EEO complaints in the last two fiscal years according to its latest No Fear Act report. Its spike in complaints over the last six years came in FY 2010 when nine complaints were filed by a total of two complainants.
This isn’t about a particular agency; it’s about the outcome of a case that makes no sense to me whatsoever. It's also about how can we possibly expect agencies will conduct quality EEO investigations given the outcome in this case.
The complainant was a WG-03 laborer on a two-year term appointment. He alleged that he was subject to retaliation when the agency terminated his employment. The memorandum terminating him gave as reasons: failure to follow leave procedures, failure to provide requested medical documentation, falsification of time cards, inattention to duty, recording conversations in violation of agency policy, and discourtesy towards a coworker.
The EEOC vacated the FAD and remanded the case back to the agency for supplemental investigation because on the first two charges there was evidence that the complainant made a request for accommodation for a work-related injury; namely, he wanted permission to go home during the day and change the dressing on his bandage. However, the record did not contain statements from either the complainant’s first-line supervisor or the union president, both of whom were present at the meeting where he requested accommodation. The file also did not contain the leave procedures that the complainant allegedly failed to follow.
The complainant was charged with falsifying his timecards on three specific dates but the investigative file contained no evidence relating to those dates. The record also contained no testimonial evidence about the alleged falsifications.
Once again, with regard to the inattention to duty charge, the file contained no evidence. On the recording charge, the record contained no evidence that the agency had a policy on recordings and no statement from the official who allegedly told the complainant he could record the conversation.
On the final allegation, one supervisor said that the complainant told a coworker to “f*** off,” but the complainant said he told the coworker to “buzz off.” Even though there were at least three other employees present at the time, the record contained no statements from those employees.
The Commission also noted that there was no comparative evidence in the record even though such evidence is required by Management Directive 110.
In his appeal, the complainant alleged that he gave the EEO investigator a list of witnesses to interview, but the investigator interviewed only management witnesses. The Commission made no particular finding on that allegation, but the record appears to bear out that allegation.
Presumably, the EEOC wants to encourage agencies to conduct “impartial and appropriate” investigations as required by 29 CFR 1614.108(b). Vacating the FAD and remanding the case doesn't do that. I mean, think this through folks. What detriment is suffered by the agency when its investigation is facially deficient? It has to do it a second time and get it right. Gee, that’s a real incentive to get it right the first time around. But there are two alternatives that clearly would.
First, the Commission could have simply used the McDonnell Douglas v. Green analysis as it does in all cases of alleged retaliation that rely on circumstantial evidence. McDonnell Douglas v. Green, 411 U.S. 792 (1973). You know, the complainant establishes a prima facie case by showing that he engaged in protected activity, management knew of that activity and adverse treatment followed. Now, under Texas Dep’t. of Community Affairs v. Burdine, 450 U.S. 248 (1981), the burden shifts to the agency to articulate legitimate, nonretaliatory reasons for its actions through clear and specific admissible evidence, something that the agency didn’t do in this case. What happens when the agency doesn’t do that? Well, the prima facie case raises a rebuttable inference of discrimination and that inference is sufficient to support a finding of retaliation in the absence of legitimate nonretaliatory reasons. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) (“To establish a ‘presumption’ is to say that a finding of the predicate fact (here, the prima facie case) produces ‘a required conclusion in the absence of explanation’ (here, the finding of unlawful discrimination)). In other words, the complainant prevails on the merits of the case. In this case, the agency failed to introduce any specific and admissible evidence that its proffered reasons were legitimate—i.e., it did not rebut the prima facie case presumption. Based on the record, the case could have simply been decided in the complainant’s favor.
Alternatively, the Commission could have invoked 29 CFR 1614.108(c) and imposed a sanction on the agency for failing to conduct an impartial and appropriate investigation. An adverse inference—say, that if the agency had produced the comparative evidence and interviewed the complainant’s witnesses it would have demonstrated that similarly situated employees who committed similar acts of misconduct and did not engage in protected activity were disciplined less severely. There’s not enough evidence in the record to overcome that inference and the result is the same—the complainant prevails.
Such an approach would give agencies pause before putting together shoddy investigations that are facially deficient and basing FAD’s on those investigations. And the solution for agencies is simple. Conduct an adequate investigation that, in most cases, would exonerate agencies on the merits of the case.
This is not about the good folks over at the International Boundary & Water Commission. It’s about the integrity of a process where the agency gets to investigate itself and decisions like this do nothing to enhance that integrity.
[Wiley note: Our recent open-enrollment seminar on conducting impartial workplace investigations (December, San Francisco) (lead by attorney Michelle McGrath) received the highest participant ratings we have ever received for a newly restructured seminar. If this is an area of interest to you – and for goodness sakes it should be – you may want to consider enrolling for the next offering of that program, October 6-10 in DC.]
The Board Triples-Down on Miller-Time
By William Wiley
Sometimes you see it on TV as a joke; sometimes you see it in real life. An American visiting a foreign land who doesn’t speak the local language will repeat himself in English over and over, louder and louder, hoping that somehow increased volume and repetition will transcend the lack of a common vocabulary. In a removal case that’s no joking matter, the good members of MSPB are taking a similar approach in issuing a third decision trying to explain a concept that is fundamentally foreign to any of us who has worked in federal employment law for more than a couple of months. Apparently, the Board believes that if it says it loud enough, its rationale for upending a fundamental and important management right will become clear and thereby accepted. Well, just like our loud-mouthed tourist, saying it over and over does not necessarily increase either understanding or acceptance. Miller v. Department of the Interior and Office of Personnel Management, 2013 MSPB 94 (December 6, 2013) (Miller-3).
To catch you up on this sad trail of woeful decisions, here’s what happened:
1. The Park Service created a new position in which it wanted a terrific employee. Mary Miller was a terrific employee, so it reassigned her to the position. Unfortunately for everyone, Miller refused the reassignment because taking the job would require a geographic move which she was unwilling to endure. The Park Service then removed Miller for refusing the reassignment.
2. On appeal of the removal, the Board reversed the action. Its reasoning was simple. Removals can be taken only for such cause as promotes an efficient service. Since a firing and then a recruiting for two vacancies would cost more than retaining Miller and recruiting for one vacancy, the agency’s action was not efficient, and thereby improper. Miller v. Department of the Interior, 2013 MSPB 27 (Miller-1).
3. In response to a highly critical article in this newsletter (OK, probably not, but we like to pretend that we’re important), the Board soon thereafter issued Miller-2 (Miller v. Department of the Interior, 2013 MSPB 35). In that opinion, the Board stated that its Miller-1 analysis was supported by precedential decisions going back 30 years, and that the Miller-1 rule is a good one: federal employees can be reassigned only if they want to be.
These two decisions were so repugnant to the running of a federal agency that OPM stepped in and asked that the Board reconsider the path it had chosen, allowing employees to stay in their jobs indefinitely even if management had decent reasons for reassigning them. Thus, Miller-3 was recently born, an opinion that is both louder and redundant at the same time.
Here is the highlight:
- The Board clarified that even though it faulted the Park Service for directing a reassignment that was not necessary, it didn’t really mean to say that. When removing someone for refusing a reassignment, the agency does not need to prove that the reassignment was “necessary,” only that its reasons are “rational,” “bona fide,” and support “the efficiency of the service.” (See, don’t you feel better now with this improved clarity?)
Here is the lowlight:
- The Board continues to hold fast to the precept that even a good reason for a reassignment (e.g., wanting to place a terrific employee into an important job) will not satisfy this new rational/bona fide/efficiency standard if the Board members disagree with it. Unfortunately, what this means is that an agency will not know in advance whether a removal will be sustained because it cannot know in advance what the members will consider to be a reason that satisfies their new standard. Oh, there’s nothing like a little legal uncertainty to empower agency management.
In reasoning for the reconsideration of Millers-1 and 2, our friends at OPM eloquently argued that “There is no more fundamental right than the right for an agency to deploy its employees in what it deems to be an efficient and effective manner.” In response, the Board noted that yes indeed; the right to reassign is a fundamental right of agency management, (citing with approval 5 CFR 335.102). However, an agency cannot enforce that right by removing an insubordinate employee unless it can correctly guess in advance what the Board will consider to be a bona fide, efficient, and rational reason (other than knowing that according to the Miller Trilogy, wanting a terrific employee in an important position is not good enough).
My first appointment to the front office of the Board was in 1988. From then until 2001, I had the honor of working under three Chairmen. And without divulging any state secrets, I can say that each Chairman on one or more occasions involuntarily reassigned a senior manager at the Board not out of “need,” but rather based on a decision that the employee would be of greater benefit to the government in a different position.
With all due respect, I would ask each of the Board members to look deep into their respective civil service souls and personal history. Each one of you either currently supervises or has in the past supervised one or more employees. And without my having any personal knowledge, I would guess that each of you has run into a situation in which you had an employee who worked for you who you believed should be in a different position – not for bad reasons, but for what you consider to be good reasons. If you told that employee that she had to report to a new position, and she refused, what would you do? Would you feel comfortable keeping an insubordinate employee in a position just because she didn’t want to move to a new job? Would you feel more comfortable removing that employee, then afterwards explaining to someone who doesn’t know anything about your work why you decided the reassignment was rational and bona fide?
If you cannot assign work as you see fit, you cannot manage a government. There will be many dark days ahead for our civil service if this line of Miller-Time reasoning withstands Federal Circuit review.
The Sky is Always Blue Above the Clouds
By Deborah Hopkins
I’m writing this article while vacationing with my mom in Playa del Carmen, Mexico. It should be sunny and 81 degrees, but today the clouds refused to dissipate, and it’s been raining for 24 hours straight, and so we’re having a drink and making the best of our damp circumstances. Apparently, over 100 million Americans are experiencing a severe cold snap while we sit here in flip flops and tank tops, so I really shouldn’t complain that today’s high only reached 78 degrees and that I got rained on while I went for a run on the beach this morning.
Mom and I were sitting under a palapa this morning, hiding from the rain and praying the clouds away, and every few minutes she would utter a rendition of something like, “I think the sun is trying to come out,” or “The sky is blue over there, right?” to no avail. After a few iterations of this my response was, “The sky is always blue above the clouds.” And indeed, it is. So what can be done about a rainy day at the beach? Well, we could have moped about it, or we could have tried to make the best of it, and so we decided on the latter. It may not be ideal but we’re still managing to have a good time.
I met a group of very nice Canadians on this trip, including a couple of people who are employed by the Canadian government, and when they found out what I do for a living they had dozens of questions about current employment climate within the federal government. It’s no secret that things are tough right now for federal workers, and have been for quite some time. Shutdown, sequester, changes in benefits, limited availability of certain positions – all these things can make it feel like a dreary, rainy day in the workplace. So, do you mope or do you make the best of it? As 2014 dawns, and people make resolution they’ll never keep, perhaps it’s a good time to try to see the sun and blue sky above the clouds.
Suggestion #1. Think of two or three things you’d like to change about the job you’re currently working in, and see if you can make those changes happen. Maybe you can apply for telework, move your desk to a new location within the office, or take on a new job responsibility. It’s probably worth asking about.
Suggestion #2. Instead of focusing on the things you don’t like, the problems you’re encountering, or the project that seems like it just won’t end, write down five or six things you like or appreciate about the job you currently have. Yes, write these things down and keep the list somewhere you have easy access, in case you need a reminder. (Suggestions: a co-worker you’re friendly with, the fact that you have an office with a view, the ability to telework)
Suggestion #3. Don’t burn your bridges, even if you’re getting ready to make a move. Some workplace situations are so intolerable that there’s really no choice but to look for new opportunities elsewhere. If that’s the case, remain professional and keep your network contacts intact. You never know who you’ll see again, and our world of federal sector employment law is quite small, so stay above the fray regardless of the situation you’ve been dealing with.
Today’s article is short and sweet, but after all, I am on vacation so I hope I get a pass on it. However, I’d still like to leave you with a New Year gift. Check out this website to see 24 people who made the best of a bad situation: http://www.buzzfeed.com/awesomer/people-who-made-the-best-of-a-bad-situation. (The website is Buzzfeed, so if your agency blocks this site forward the FELTG newsletter to your personal email address and check it out at home – it’s worth your time for the chuckle you’ll get.)
Well, this is it, folks. The last FELTG Newsletter for 2013. What with furloughs, shutdowns and dodging a debt ceiling, it’s not been the best of years on the federal front. With the House passing a budget deal, but not an actual budget, last week, we’ve moved a step closer to 2014 being a better year, or at least one with some stability.
So, this is a good time for all of us here at FELTG to express our deep appreciation for what you do out there everyday despite, what at times, seem like overwhelming odds. Yes, we sometimes criticize and even poke fun at some of the things that happen in our little community, but we do so because we care and as a way of prompting thought about some of the issues we confront.
We’ve got a lot of good things planned for next year to help you confront some of those issues. We’ll be resting up for a few weeks, but beginning January 9 we’ll be back with FELTG’s supervisor training webinar series Holding Employees Accountable for Performance and Conduct. In just a few sessions, we’ll cover topics to enable your agency supervisors to comply with OPM’s 5 CFR 412.202(b) mandatory training requirements, plus as a bonus we’ll cover the EEO topics you can’t afford to miss.
Open enrollments also kick off with Absence & Medical Issues Week, January 13-17, in Washington, DC, followed by the brand new and highly-anticipated Advanced Legal Writing Week, February 3-7, also in Washington, DC. Plus, we have a whole list of topical webinars on the docket. Check out all those details, and more, on our website.
From all of us, we wish you the very best for this holiday season and a joyful new year.
Read and enjoy.
A Symbol We Can All Get Behind
By Ernest Hadley
We are dinosaurs. Even though we live in an area where we don’t get home mail delivery, we do get two newspapers delivered to our door everyday. Well, not exactly to our door, but to the end of our road -- a pleasant stroll of several hundred yards in the summer, somewhat less pleasant this time of year. We also get the local weekly. How else would we know who’s been arrested lately?
Anyway, newspapers are not exactly the point of this story, except for sometimes I get my ideas for newsletter articles from newspapers. And so it was that I came across an Associated Press article about the Accessible Icon Project -- isn’t that really a better name than Handicapped Symbol? -- and the effort to replace the stationary humanoid figure in a wheelchair with one that suggests forward movement.
The new icon goes quite nicely with what we teach at FELTG about the state of affairs under the Americans with Disabilities Act Amendments Act. The emphasis under the ADAAA is no longer on what individuals with disabilities can’t do, but what they can do despite having a disability.
The goal of the Accessible Icon Project is simple:
The Accessible Icon Project provides supplies and services to transform the old International Symbol of Access into an active, engaged image. We think visual representation matters. People with disabilities have a long history of being spoken for, of being rendered passive in decisions about their lives. The old icon, while a milestone in ADA history, displays that passivity: its arms and legs are drawn like mechanical parts, its posture is unnaturally erect, and its entire look is one that make the chair, not the person, important and visible. As people with disabilities of all kinds -- not just chair users -- create greater rights and opportunities for social, political, and cultural participation, we think cities should evolve their images of accessibility too.
So what does the new symbol look like?
Want to know more about the Project? Go to http://www.fastcodesign.com/1672754/how-a-guerrilla-art-project-gave-birth-to-nycs-new-wheelchair-symbol.
Now, if we could only get on with the business of eliminating labels like “Handicapped Parking” and “Handicapped Ramps.”
The Limits of Supervision
By William Wiley
Most of us have probably been on a football field at one time or another. Player, band member, cheerleader, or just looking to grab a quick smoke at recess. Football fields are a ubiquitous part of our lives.
Picture yourself standing just beyond the end zone, probably right under the goal post. Now look beyond the back edge of the other end zone and picture your 13-year-old son sitting behind the wheel of something really big and dangerous when it moves, maybe a bulldozer or a tank. And finally, picture a class of kindergarteners gleefully playing around behind that other end zone near your son.
Pop Quiz: Would you say you would be exercising bad judgment if you were to instruct your son from your current location as to how to maneuver his vehicle through the crowd of kiddos? Would you change your answer if I told you that you could contact your son using a two-way radio? In other words, would you think it good judgment to supervise someone long distance in how to move a really, really big piece of equipment in a situation in which a mistake could kill someone?
Well, if you answered that you think you can provide adequate supervision in a situation like this, then you qualify to be a member of the Merit Systems Protection Board, because that's exactly what the Board majority said recently in Hill v. Army, 2013 MSPB 88.
Of course, the facts of that case didn't involve your teenage son and an earthmover. Instead they involved a temporary clerical employee being supervised in how to close a lock in a canal from a distance of about 400 feet. That's a bit farther away than in our hypothetical football field analogy, and big boats carrying adults is different from our made-up kindergarten scenario, but you get the drift. (Get it? Drift. Boat. Sometimes the humor just pours out of my fingertips.)
Mr. Hill is an experienced lockmaster. That's a really big deal because that means he's responsible not only for huge expensive things like ships and boats, but also for the men and women on those vessels, plus their cargo, as they transgress through a system of locks that control the change in water level from one body of water to another. If you've never seen a lock in action, it's actually worth a visit some weekend if you get a chance. Fascinating.
The Army fired Hill based on two charges: 1) Exercising poor judgment and 2) Lying about the lock incident. The poor judgment charge had two specifications: the lock incident above, and a separate questionable use of the lock to move two boats at once. Although Hill had a long and successful career, he had recently been suspended for a day for failing to follow instructions.
The Board upheld the falsification charge. There was a nice little security video that showed he was lying when he said he didn't allow the clerk to operate the lock. So we all agree that we have a supervisor, with a prior suspension, lying. There was a time that this act alone would have warranted removal. How can the agency trust this guy in the future when he lied to protect his own backside? How can you run an organization with a senior manager responsible for life and death decisions that you can't trust to be truthful?
But none of that mattered to the Board majority. Although they upheld the falsification charge, they did not uphold either specification of the bad judgment charge. And as attendees at our MSPB Law Week seminar learn, once the Board knocks out a charge, it feels free to make its own decision as to the penalty (if all charges are sustained, the Board is supposed to defer to the agency's penalty selection, even if some of the specifications fail). Upon reaching the penalty, the majority held that the maximum reasonable penalty in this situation is a 60-day suspension. So now the Army has a falsifying lockmaster back at work who believes it's OK to supervise untrained clerical employees in the operation of a lock from over a football field away. What a way to float a boat.
In dissent and in support of the removal, Member Robbins said, "It is difficult for me to envision a clearer example of poor judgment by a professional and manager." Oh, if only some of the other Republicans in Washington made as much sense as does he.
The Federal Sector Glass Ceiling
By Ernest Hadley
So, GM broke the glass ceiling last week by naming Mary Barra as CEO. Based on a recent EEOC Women’s Work Group Report, maybe its time for the federal government to do the same.
Commissioned by Office of Federal Operations Director Carlton Hadden in January 2010, the group mission was to identify barriers for women that remain in the federal sector. From a summary of the report, the landscape still looks a bit glum:
As just a small example, in 2011, women comprised 43.81% of the federal workforce. Despite this, preliminary data for 2011 shows that women only comprised 37.77% of GS-14 and GS-15 positions, and 30.03% of Senior Executive Service positions. Further, the average General S Schedule and Related (GSR) grade for women was 9.6, more than one grade below the average grade level for men of 10.7.
The report identifies six barriers that remain for women in the federal workplace:
OBSTACLE 1: Inflexible workplace policies create challenges for women in the federal workforce with caregiver obligations.
OBSTACLE 2: Higher level and management positions remain harder to obtain for women.
OBSTACLE 3: Women are underrepresented in science, technology, engineering, and mathematics fields in the federal workforce.
OBSTACLE 4: Women and men do not earn the same average salary in the federal government.
OBSTACLE 5: Unconscious gender biases and stereotypical perceptions about women still play a significant role in employment decisions in the federal sector.
OBSTACLE 6: There is a perception that Agencies lack commitment to achieving equal opportunities for women in the federal workplace.
Each of the obstacles is accompanied by a number of recommendations for overcoming them, as well as identifying areas for further research such as why women are underrepresented in higher-level management positions.
The full report is available at http://www.eeoc.gov/federal/reports/women_workgroup_report.cfm.
How Discipline is Supposed to Work
By William Wiley
In 1977, I attended an employee relations training class presented by the old Civil Service Commission. Back in the day, it was mandatory for newbies to the field like me to attend these CSC fundamentals classes. Otherwise, we were not allowed to advise line managers on our own without supervision.
I remember one of the gray haired instructors explaining "progressive discipline" to us. He said something like this:
We never want to discipline someone just for the sake of punishment. What we want them to do is to correct their behavior so that they are a good civil servant. Generally, the first time they do something wrong, we warn them not to do it again. That's considered to be the first step in progressive discipline, and we call that warning a Reprimand.
Later, if they engage in further misconduct, they are demonstrating that reprimands don't work to get them to stop breaking the rules, so we move up to a more severe level of discipline, and we take away part of their salary by keeping them from coming to work for a period of time. That's the second step in progressive discipline and we call that a Suspension.
And finally, if they engage in yet further misconduct, they are showing us that reprimands and suspensions don't work on them to correct their behavior. An employee who does not respond to discipline cannot be tolerated in the federal workforce, so we remove them.
Oh, the halcyon days of youth. How straightforward. How logical. We are doing the employee a favor when we reprimand or suspend because otherwise we would be removing him for violating a rule. And if he just doesn't get it -- and some people don't -- we then remove him from the civil service and replace him with someone who does.
When the Board took over the discipline oversight responsibility from CSC in 1979, it carried this principle with it. Although there's no single case that says it as succinctly as did my instructor at the CSC training academy, you will be hard pressed to find any MSPB holdings that varied very far from this reprimand/suspension/removal three strike concept.
Until recently. Beginning with Suggs v. Department of Veterans Affairs, 2010 MSPB 99 and as recently as Hill v. Army, 2013 MSPB 88, two members of the Board are tending to discount a prior suspension as a step in progressive discipline UNLESS the suspension was for the same misconduct as the later offense that is the basis of the subsequent removal. For example, in Hill, the previous suspension was for Failing to Follow Instructions. The sustained charge supporting the later removal was Falsification (the details in Hill are discussed in a companion article in this newsletter). When discounting the weight to be given to the previous suspension and mitigating the removal, the Board majority essentially ignored the previous suspension and noted that there had been no prior discipline for the specific Falsification charge that was the basis for the removal.
This is a subtle but hugely significant change from the way I learned progressive discipline is supposed to work. The old CSC approach gave employees a chance to obey the rules through the application of progressive discipline. This new Board-majority approach implies that progressive discipline is intended to correct behavior relative to each individual workplace rule that the employee might violate. In a vacuum and removed from the reality of frontline management, this new approach has a ring of rationality. By applying the concept of progressive discipline on a rule-by-rule basis, we are affording the employee a chance to correct his behavior relative to each rule. However, if you really think about it, this approach creates a situation in which an employee could violate each rule in the agency's table of penalties once and get only a reprimand for each violation. As a typical table of penalties contains 50 or so charges (specific rule violations), that could be 50 or so reprimands before we can move up progressively to a suspension. And that's just foolish.
So here's where we seem to be with the current majority of this Board:
Progressive Discipline: You cannot count on a prior suspension to justify a subsequent removal based on the classic approach to progressive discipline. If the prior suspension is for the identical misconduct as the subsequent misconduct, maybe. But we can't even say that for sure. All we can say is that the current Board majority does not give much weight to a prior disciplinary action if it is not for the same misconduct as supports the removal. What we don't know is if the current Board majority actually gives much weight to a prior suspension even if it IS in the same category of misconduct. For 35 years, I have taught that progressive discipline is the "silver bullet" in defending a removal action. I'm afraid I can't say that any more.
Long Suspensions: If you read Hill, above, or Tarr v. Department of Transportation, DC-0752-10-0910-I-1, APR 19, 2012 (NP), you will see that the Board majority appears to be enamored with the idea that a 60-day suspension is a good alternative to a removal if the removal is an excessive penalty. Well, I would ask the honorable Board members, where in the world did you come up with this? There is zero (0, zilch, nada) empirical evidence to even suggest that a 60-day suspension is more likely to correct bad behavior than would a 14-day suspension. If you don't believe me, go ask the Board's Office of Policy & Evaluation to do a little research in the area.
Of course, if your objective is other than to correct behavior, then maybe 60 days makes sense. However, if you do have an objective other than corrective, please tell us poor slobs out here on the frontline what it is so that we might try to do whatever it is you expect us to be doing. Because a 60-day mitigation does not make sense to us normal people.
I don't mind changing direction as to what we are supposed to do as much as I mind not knowing what we are supposed to do that is different.
Don’t Post That Picture of Me and Santa on Facebook!!!
By Deborah Hopkins
It snowed in D.C. last week. I mean, real snow. The grass even had some white stuff stick to it for a few hours. While many people behaved as if it was the end of the world and refused to come out of their houses, I took the opportunity to drag a friend along for a run on the Mall, in the snow. And as we ran along the Reflecting Pool toward the Lincoln Memorial, pool blinking big, fat snowflakes from our eyelashes, it hit me that the holidays are really here!
My social calendar has been full of Hanukkah/Thanksgivukkah parties, and there are Christmas and New Year’s parties still to come. Last year I put together an etiquette guide for your agency holiday parties, so this year I thought I'd supplement that with some additional considerations for the holiday season office party attendee.
Location, Location, Location: Given the constraints of the federal budget and the recent excessive spending behaviors exhibited by agencies that will remain nameless, if your agency is having a holiday party, it’s probably been scaled back from an all-out extravaganza at a hotel ballroom or five-star restaurant.
If, however, the locale is away from the office building, it’s important to consider the location. A restaurant or bar may be a fine choice, but use common sense and keep the surroundings in mind. Taking your EEO group to Hooter’s for Christmas lunch may come back to haunt you.
Some Rules About Giving Gifts: Last year we covered the topic of gift guidelines for federal employees. (If you’re not familiar, check out http://www.oge.gov/DisplayTemplates/SearchResults.aspx?query=gifts).
In addition, if there are gift exchanges or Secret Santas or the like, keep the following in mind:
1) Don’t give gag gifts that could be interpreted as mean-spirited. For example, don’t give an alarm clock to someone who is perpetually tardy.
2) Don't give gifts of a personal nature. For example, stay away from gifts like reindeer boxers or snowman nighties. Undergarments and sleepwear should be avoided at all costs.
3) If you’re not giving gifts to everyone, keep your gift-giving private and away from the party. After all, nobody likes to feel left out.
It’s a Party, But It’s Still Work: Does this mean that the conversation has to be about work? Certainly not! Holiday parties provide an excellent opportunity to meet new people, to make small talk, and to take a break from the crunch of the workday. That said, don't forget that it’s still a work party – which means it’s important to steer clear of no-no conversation topics (religion, politics, sex, money) and remember that what you do at your office party reflects on your image as a government employee. Wear a Santa hat or reindeer antlers, sure, and have fun with it. But be sure to maintain your professionalism throughout.
Photo Opportunities: As the world-famous Bill Wiley always says, never allow yourself to be photographed coming out of a casino or holding an alcoholic beverage. Since your holiday party won’t be held in a casino (or at least, we hope it won’t) the second part is something to be aware of. Photos taken at a holiday party can be a fun way to remember the event. But be respectful by asking permission before you take a person’s photo, and also before posting on a social media site. It’s just the proper thing to do.
Some Final Considerations: Moderate your alcohol and food consumption. Enjoy telling some jokes and talking shop. Mingle with your co-workers, meet new people, say hello to the supervisor (but don’t take this as an opportunity to pitch a new idea), and be sure to thank the hosts for putting the party together. And have fun!
From FELTG to you, we wish you a continued joyous holiday season. Eat, drink, and be merry. Enjoy time with family and friends. And cheers to a productive and happy 2014!
With a tip of the hat to Click and Clack, those wonderful Tappet Brothers, can you believe that you’ve wasted almost another perfectly good year reading the FELTG Newsletter? And can you believe that we’ve actually been doing this every two weeks for four years now? There is the occasional holiday or government shutdown that disrupts our publication schedule, but otherwise we dutifully sit down every 14 days to bring you the latest in federal sector employment news with our insightful and sometimes inane commentary.
Why do we do this? Well, aside from the fact that we don’t have anything resembling an actual life, we do it because we think you deserve to be informed and occasionally entertained. It’s our way of giving something back to a community that has allowed us to avoid gainful employment for many years now. No need to thank us. If, over the last four years, we told you something you didn’t know, or just made you smile, then it’s been worthwhile.
This year is winding down for us – although you still have time to join us for Workplace Investigations: Misconduct Seminar in San Francisco, next week – but we have plenty on the schedule for 2014. That is if the creek don’t rise and those good folks we elected to Congress don’t bring it all to another halt. Here’s just a sampling. Our Washington, DC, open enrollments kick off with Absence & Medical Issues Week January 13-17, the brand new Advanced Legal Writing Week February 3-7, and MSPB Law Week March 3-7. Our webinars include a host of content-based topics for the employment law practitioner, plus the return of our Holding Employees Accountable for Performance & Conduct supervisor training webinar series, to meet OPM’s 5 CRR 412.202(b) requirements for new supervisors. And, we’re continuing to lock in onsite training dates. Check out our website for details on all of the above, plus a lot more.
Newsletter time. Read and enjoy.
Look Ma, No Names!
By Ernest Hadley
Four simple words that strike terror into a mother’s heart—“Look Ma, no hands”—as that precious child flies down the street on a new bicycle. They are usually followed by six words—“You're going to break your neck.” What does that have to do with the EEOC’s latest federal policy, you ask? Probably nothing, except to help explain the title to this article.
More than once on these pages—do electronic newsletters actually have pages?—I’ve advocated that the EEOC’s Office of Federal Operations should abandon its practice of referring to supervisors as S1, S2, etc., and coworkers as CW1, CW2, etc., in its decisions and simply use people’s given names. Indeed, I even once suggested that this was particularly true in decisions finding discrimination and that the EEOC should go a step further and post the names of the offenders on its website in a Federal Employees Hall of Shame. In part, I argued that it was unfair to publish often-intimate details about the identified victims of discrimination while protecting the identity of those who violate the law.
As always, the EEOC came up with a unique solution to this dilemma. It no longer uses anybody’s name. It now captions all cases Complainant v. [Plug in Your Favorite Agency].
Now, why didn’t I think of that? Possibly because I think it’s an exceptionally bad idea. How so? Let me count the ways.
First, there’s this small issue of the public’s right to know. Whether they are the complainant, the supervisor, or a coworker, these complaints all involve public employees. And, yes, we do have this relatively fundamental principle that, as citizens, we have a right to know what our government and those who work for it are up to. Want to find out what somebody in the federal government makes? Just go to GovernmentSalaryData.com, punch in a name and agency and you’re in business. Why? Because it’s public information, that’s why. So, I can search the public records and find out some official’s salary but I can’t search the public records and find if the individual has ever been determined to have engaged in prohibited discrimination. Go figure, and I mean that figuratively not literally.
The MSPB uses names, always has. In fact, the Board not only uses the appellant’s name, it often refers by name to supervisors and coworkers involved in the matter in its decision. It even uses the names of private citizens on occasion. (Hmm? Don’t I recall Brother Bill getting named in a decision recently?)
By the way, take a look at a few of the press releases on the Commission’s website that tout its success in private sector cases where names of the charging parties—that’s the Commission’s private sector lingo—are frequently used. Private sector employees don’t get anonymity but federal employees do?
There’s also the matter of destroying our means of communicating in the legal world. One of the ways we communicate is by case names. For example, mention Macy to anyone in the EEO field who’s even vaguely paying attention and they will know that you’re talking about Commission’s decision holding transgender status is covered under Title VII. Mention Ma and many will immediately know that you’re talking about a decision that sets out the criteria for determining if a contractor is an agency employee for Title VII purposes. Mention Cobb and we’ve moved into the realm of the standard for stating a claim for relief. Now, we can talk about the famous Complainant case. (On the upside, I now know the answer anytime someone asks me for a cite for something I’ve said. It’s all right there in the Complainant case. No more, I’ll get back to you after the next break.)
Oh, yes, and I can hardly wait to punch in the name “Complainant” as a search term and see what happens.
How about those complainants who would like it known for the public record that they have been the victims of discrimination? Not everyone wants his or her identity concealed. And what about those who do? Wouldn’t a better solution be to allow those complainants to seek John or Jane Doe status instead of relegating everybody to anonymity?
And, yes, the downside to blanket anonymity isn’t just about the victims of discrimination. What about those who abuse the EEO process? Take for example, Yuri Stoyanov. Now, here’s a guy who has made a career of filing multiple absolutely frivolous EEO complaints against the Department of the Navy. Don’t believe me? Run his name through one of the search engines. Not only will you find that he’s had numerous complaints dismissed for abuse of process, but several others dismissed for contumacious conduct. But under this new policy he now becomes just another complainant who’s identity is concealed. Why? Don’t we have a right to know who some of the individuals are who clog an already overburdened system with stupid complaints that delay a remedy to the rightful victims of discrimination?
If we’re really going to make the whole enchilada anonymous, why bother to name the agency? Why not, just Complainant v. Government? Heck, why not just Us v. Them?
Sorry, but I think this was a step in the wrong direction. And I’m willing put my name on that.
[Wiley Note: Brother Hadley and I agree that this all-anonymous approach is a silly misplaced policy that does not serve the interest of good government. However, for me it has one bright shining aspect to it. Currently, I am involved in a contest of wills with EEOC (as I often am with MSPB) trying to use the Freedom of Information Act to get information about a case that I can pass on to you good readers so you won’t make the same mistakes someone else has made. EEOC has been especially infuriating to deal with in this area because it has taken the position previously that the decisions of its administrative judges are not available to the public because they contain information about the complainant that would constitute an unwarranted invasion of privacy if released. Well, if the complaint is no longer going to be identified, then EEOC’s rationale for keeping the judges’ decisions secret is no longer valid. Ha, ha, ha (cue the evil laugh); got you now, Commission.]
Don’t You Really Wish You Knew Who This Idiot Was?
By Ernest Hadley
Just when you thought you were safe from my rant, see Look Ma, No Names!¬—I came across this case. Yep, you guessed it, it’s encaptioned Complainant v. Secretary of Defense, EEOC Appeal No. 0120132212 (November 8, 2013). What, you ask, is so remarkable about this sublimely obscurely titled case? Well, let me tell you.
At a European administrators’ conference, the, of course unnamed District Superintendent for the Vicenza Elementary School in the Mediterranean, says, and I quote from the decision:
EEO’s are crap. Here’s what happens. They won’t win because there’s nothing to support it. They’ll drop it because they don’t have evidence and don’t want to spend money for a lawyer. Senior citizens are afraid to retire, economically afraid. EEO people are crazy people. Don’t be afraid of EEO’s. They’ll go away.
Now, the administrative judge granted summary judgment. It is, no doubt, a summary judgment case. The agency didn’t contend that the DS—don’t you just love that designation?—did not make the statements. No, the agency contended that the DS had a legitimate, nonretaliatory reason for the statements; to wit, that the DS was just trying to remind managers that they could take action without fear of EEO complaints. So, the judge grants summary judgment not for the complainant but for the agency apparently thinking no real harm, no foul.
On appeal, the Commission agreed that it was a summary judgment case. It disagreed on which party was entitled to that judgment however finding that the complainant had demonstrated a so-called per se violation. Noting the standard from Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) is whether the agency’s action might have deterred a reasonable person from opposing a discriminatory practice or filing a complaint, the Commission noted that “[w]hen a supervisor’s behavior has a potentially chilling effect on use of the EEO complaint process—the ultimate tool that employees have to enforce equal employment opportunity---the behavior is a per se violation.”
Excuse me, but DS is a prime candidate for my proposed Federal Employee Hall of Shame. If I knew who it was I could tell you exactly how much the government pays him or her to make stupid comments like this that subject a federal agency to even more financial liability. By the way, I wouldn’t mind knowing who the judge and agency representative were who thought this was a summary judgment case for the agency.
How I Spent My Thanksgiving Holiday
By William Wiley
Spain. A traceable history going back at least 7,000 years. Every time they dig a new basement, they uncover a Roman bath. Or, a Visigoth hotel. Or, some other artifact proving that theirs is a very old civilization. Where better for me to spend two weeks recently scouting for new venues for our FELTG seminars, and looking for inspiration for articles for our FELTG newsletter?
As I write this piece, I'm on a bullet train heading to Madrid from Sevilla, looking for bullfights. Why don't we have trains like this in the States? Why don't we have bullfights? Oh, so many questions to try to answer.
And although I still have questions to answer, the trip has already brought home to me why being a specialist in federal employment law puts a different spin on things. For example, here are three concepts I've already put together that a normal person on holiday would not bother their brain with. If you find yourself thinking in this same strange way, you are definitely part of the employment law fraternity, whether you like it or not. For example:
Christopher Columbus Was a Government Contractor. Government contractors often get a bad rap. Sometimes deserved, other times not (does the name "Edward Snowden" ring any bells?). As I was standing beside the crypt in Sevilla that contains Columbus's remains (all 200 grams of them), it dawned on me that he was a classic government contractor. Queen Isabella was the government. None of her loyal court members were interested in sailing off the edge of the earth in search of spices from India, so she hired old Christo to do it for her. It was a little expensive compared to doing it with members of her government, but cheaper in the long run, especially if Columbus did not make it back. Being a federal employment lawyer who works as a government contractor, I was touched to be in the presence of the spirit of one who had gone before.
The Inquisition was a Big RIF. For over 700 years, Jews, Muslims, and Christians lived together on the Iberian Peninsula. I wouldn't say in total harmony necessarily, but at least in relevant tolerance. Around 1492, some king decided if you weren't Christian, you couldn't live in Spain, and so he invented "The Expulsion." He told all the non-Christians, "OK, here's the deal, heathens. You guys have been around for a very long time. You are very smart, hard workers, and have a lot invested in this place. But because I'm the king, I get to decide who leaves and who stays, and those of you who do not eat pork, leave." When we reduce the federal workforce through RIF, veterans get preference. In Spain in 1492, the folks who got preference did so based on their religious beliefs. And there was no appeal to MSPB.
Judas Was a Whistleblower. Above one of the entrances to Gaudi's wonderful La Sagrada Familia cathedral in Barcelona, there is an image carved in stone of Judas signaling to the Roman officials by a kiss who among the group at the last supper was the law-breaking man called Jesus. If you look closely, you will see that around the feet of Judas the sculptor has carved a coiled snake. In a number of towns in southern Spain, at the end of celebrating the Holy Week for Christians that precedes the celebration of the Resurrection, all the figures of Judas that have been paraded around town are either blown up or burned. Better not try this stuff with any of your employees who disclose violations of law, or you’ll risk having the Archangels of OSC come swooping down on your little kingdom.
When you study for the law, it is common to have a professor along the way tell you that once you become a lawyer, you see life through a different lens. For example, upon witnessing a car wreck, before you feel concern for the poor victims, a lawyer might find herself mentally assessing liability and perhaps even running a quick calculation of damages. So those of you new to this field, take my insights as a warning. Stay in the business of federal employment law long enough and you just might find yourself issuing reprimands to your siblings, denying step increases in allowances because your kids’ grades aren't up to par, or even placing that husband of yours on a PIP. Just try not to let it detract from your vacation.
How Long is Long Enough?
By William Wiley
Sometimes a little NP decision comes along that is so meaty, it makes you think Deep Thoughts. This is one of them, Tarr v. Department of Transportation, DC-0752-10-0910-I-1 (April 19, 2012).
The essential facts in this case are not in dispute:
1. The employee is a "talented" GS-14 supervisor with an unblemished 18-year work record.
2. While on assignment overseas for 45 days, he used his government laptop off-duty to access pornography and attend to an on-line business. The agency has a policy that allows for the personal use of government laptops for indeterminate "personal use."
3. While on the same assignment, this married man developed a personal relationship with two local women he met, neither of which had an on-going work relationship with the agency.
4. When confronted with his misconduct of improper computer use, he was remorseful and voluntarily paid the agency $5,000 in compensation for the wireless charges.
5. On appeal of the removal based on charges of improper computer use and inappropriate relationships, the judge did not sustain the charge related to the relationships as there was no proof of nexus.
6. Based on the remaining computer-misuse charge and a Douglas factor assessment that found unusually significant rehabilitation potential, the judge mitigated to a 14-day suspension.
7. On agency PFR to the Board, the two members seated at the time agreed with the judge on everything, for the most part, then held that the correct mitigation level is a 60-day suspension.
As an initial matter, the judge's decision in this appeal has a terrific analysis of the Board's case law regarding the establishment of a nexus for off-duty misconduct. And both the initial and final decisions contain some interesting thoughts regarding rehabilitation potential (note to our union representative readers: read these decisions for that alone).
But neither of those analyses is what got the Deep Thoughts going when I read these two holdings. The question I came away with is this. When is enough suspension enough?
It is fundamental to our business of employment law that we discipline not to punish for the sake of punishment, but to correct behavior. We suspend employees with the hope that they will learn their lesson and refrain from engaging in future misconduct. We want them to be successful, not just to suffer a loss of pay for the sake of suffering.
So what misconduct are we trying to curtail in this situation? Well, the guy used his government computer for personal reasons, thereby costing the agency an indeterminate amount of money. There is no claim that the use was excessive or occurred at any time other than this one overseas assignment. We know that the agency has a policy that allows for the personal use of computers while on travel, within "an amount allowable for personal use" (whatever the devil that means). And finally, when the matter was brought to his attention, he wrote a check to the government for $5,000 without even knowing whether that was what his personal usage had cost. Note that the agency apparently cashed the check.
You regular readers know that I'm not some overly-sensitive, boo-hoo, poor-victim sort of employment law practitioner who believes that every disciplinary action is discrimination and that termination really is never warranted because a bad employee is simply a result of bad supervision. In fact, on occasion my training buddy Ernie has stated in class that my solution to every employee problem is to fire them all and let the judges sort it all out on appeal. [Editor’s Note: This is, in fact, a true statement.]
Well, that may be a bit of an overstatement, but I have to tell you, I'm just not sure that there is actionable misconduct here. Had this guy used his laptop to pay some bills on-line or maybe to research mortgage companies because he's thinking of buying a house, would we have a case here at all (given that the agency cannot pin point how much time was involved or what the limits of the personal use policy are)? Although the personal relationship charge failed, the agency was bothered that he had used his government computer to email a couple of women he met while on travel. Had he emailed his kids to help them with their homework, would there have been the same concerns?
No, it's the sex. Surprise!
But neither the Board nor the agency says that. When the members increased the mitigated penalty from a 14-day suspension to 60, the only reason it gave for the increase was that the "relatively minor" penalty of a 14-day suspension "fails to properly recognize the nature and seriousness of the appellant's misconduct."
"Relatively minor"? A 14-day suspension is a paycheck; maybe $4,500 take-home for this GS-14. Note that he's already paid the agency $5,000. And exactly what is it about the "nature and seriousness" of this offense? Let those among us who has never used a government computer for personal reasons be the first to cast a stone. Did the members conclude that it would be less likely that this employee with a high degree of rehabilitation potential would engage in future misconduct if they whacked him with an additional $18,000 in penalties?
Nah, it's the sex.
There is no principled reason in psychology or in law to conclude that a 60-day penalty has greater corrective value than does a 14-day suspension. And that's especially true in a situation such as this in which the Board found the employee to have "strong rehabilitative potential." Either the Board is interested in doing something here other than correct behavior, or there's something else going on that I simply do not understand.
(It's the sex.)
Pick Up the Phone!
By William Wiley
For many years, when I drafted a proposal letter I would routinely tell the employee that if he chose to exercise his right to make an oral reply, he should contact the deciding official, Director So-and-So, at 555-1212 to arrange an appointment. Then, in a flash of brilliance about five years ago, it dawned on me that there is a better way, a way that protects the employee's rights, provides a bit more organization, and saves everyone an unnecessary step or two. And ever since then we have been teaching that approach in our MSPB Law Week and Legal Writing classes. Instead of the above, we recommend that as you are drafting the proposal letter, you contact the deciding official yourself and get the employee on that very important person's calendar for an oral response. Then, the proposal letter would contain language something like this:
You have the right to reply to this proposal orally and in writing. If you choose to make an oral response, you may do so at 2:00 PM on Tuesday, December 3, 2013, in the Director's Conference Room, in Building 123.
My reason for coming up with this proactive scheduling approach was mainly a matter of logistical practically. As we sooooo often teach in our classes and write in our articles, an agency is wise to do as little as is necessary to protect the employee's rights and comply with the law because - in large part - the more you do, the more you have a chance to screw something up. And we recently got a decision from the Board that hammered home this basic frugal approach to taking a discipline or performance action: Massey v. Department of the Army, 2013 MSPB 80 (October 25, 2013).
In Massey, the proposal notice took the old approach of telling the employee to make arrangements with the deciding official to schedule the oral reply. When the employee requested additional time, the agency's employee relations specialist granted an extension and told the employee's representative to "ensure you are on [the deciding official's] calendar NLT COB on 7 FEB." On 7 FEB, the employee's representative emailed the deciding official and asked that the deciding official have someone on his staff contact him to schedule an oral reply. The deciding official did not do that, and issued a decision without an oral reply.
Sounds a bit like the old Capitol Hill exchange of "have-your-people-call-my-people," doesn't it? The one who can get the other to make the call "wins" because nobody tells HIM what to do.
So what did the Board do with this failed game of telephone tag? It whacked the agency on the knuckles with the gosh darned Constitution, found a violation of due process, and ordered the employee's removal set aside: back pay, attorney fees, bragging rights ... the whole enchilada. Case closed until the agency gets around to re-firing the employee using Constitutionally correct procedures this time.
Now think what would have happened using the approach we recommend here at FELTG. The proposal letter would have given a day and time specific for the oral response, previously coordinated with the deciding official. That puts the ball in the employee's court either to show up as scheduled or to ask for another appointment. When the employee asked for more time, the better response would have been to give a new date and time. And when the employee's representative emailed for a call to arrange a new response, an email response with a new date would have been appropriate. Of course, a call to discuss a new date also would have been appropriate, but then the agency would have "lost" the status game of who-calls-whom. Wouldn't want that to happen.
So if you want to avoid: a) a lot of calling around, and b) an unnecessary possibility that you might do something so wrong that you lose an appeal, then start scheduling oral responses right in your proposal letters, and your professional life will be the richer for it.
By the way, as a side note, I notice that in this case the employee's attorney directly contacted the deciding official via email. When I work a case for an agency, I don't want the deciding official dealing directly with the employee's representative. The proposal letters I draft give a mailing address and a fax number for the deciding official should the employee decide to respond to the proposal in writing, and me as the contact for all other matters. And I instruct the deciding official (very sweetly, of course) that he should redirect any contact from the employee or the representative to me for response. If the representative happens to be an attorney, I very pointedly remind him of his ethical obligation not to directly contact an agency decision-maker who is represented by legal counsel, as Ernie and I teach in our annual ethics webinar.
There's no good that can come from direct contact between the decision-maker and the employee's representative, and a possibility that something might be said accidentally that harms the agency's case.
Adjectives and Adverbs Need Not Apply
By Deborah Hopkins
I like to write. I like to tell stories, descriptively. Adjectives and adverbs give me warm fuzzies and make me feel delightfully happy. (See what I did there?) Then, imagine my consternation when the first writing assignment I had in law school last September, a simple office memo, was returned to me covered with so much red ink that the pages were practically bleeding onto the floor.
Years ago, I believed much of what I saw on Law & Order: SVU was reflective of how lawyers really do things. I believed in the common use of multisyllabic legal words, I thought every trial was held in an ornate courtroom, full of flowery cross-examinations interjected with enough Latin to impress the jury, and supported by briefs so full of detail, so convincing, so moving, that they could make a judge weep with emotion.
When I transitioned over to this field I quickly realized that creative writing and legal writing do not a happy couple make. We teach this same principle in our Legal Writing Week – and we’ll go into even greater detail about why and how during our brand new Advanced Legal Writing Week this February in Washington, D.C. – and there are a few lessons I want to highlight. Consider it a free preview of the course, if you will.
Avoid legalese and bureaucrat-ese. This means we shouldn’t use fancy phrases like “Comes now counsel” and “For the purpose hereof.” It also means we should use familiar words: for example, use the word go instead of proceed, or from now instead of hereinafter.
Stay away from prepositional phrases. You might be thinking, “Wait a minute – what’s a prepositional phrase? I remember learning about them in middle school but I don’t remember what they are.” Prepositional phrases are wordy terms that help take a paper from three pages too short, to a paper that (in addition to increasing margin size and changing the font to into 14-point Courier New) helped fill out that minimum page length nicely. Examples include “In close proximity to,” “In the event that” and “In view of the fact that” and all can be simplified into one-word terms. (Answers: near; if; because – in case you were wondering.)
Delete unnecessary or redundant words and phrases. Rather than the phrase “The field of EEO law” you – and your writing – would be well-served to just call it “EEO law.” Another example: “whether or not” is a frequent offender where “whether” alone will suffice.
Useless Qualifiers. Clearly, there must be something wrong here. Actually, there is. The first word in each of those two sentences adds nothing to the content of the sentence, and didn’t need to be written. Other offenders we often see in legal writing include generally, obviously, practically, truly, sincerely, and extremely.
There are exceptions. Sometimes, a technical or legal phrase is the only term that is appropriate. If you must, you must. One way to determine this is if a specific word or phrase carries a deep meaning that can only be shared through use of that term (promissory estoppel; cloud computing). Another exception exists when the complex word is unique to the government or is used consistently in day-to-day business (competencies instead of skills). There are hundreds of other examples, and we’ll give you those during our Legal Writing seminars. For now, consider these a guide. Happy writing.
I like to write. One day I even hope to be proficient, if not good, at it. I also like to laugh. This I have mastered better than writing, possibly because spelling doesn’t count. So, I was interested to see an interview posted on the Daily Beast with 7th Circuit Court of Appeals Judge Richard Posner on his writing habits. Think of the good judge as you will, and there is much to say and much that has been said on both sides of the equation, he’s a good writer who often brings a sense of humor to his opinions. And, at FELTG, we always appreciate a sense of humor.
I especially liked his comments about having no desire to be on the Supreme Court, not only because of his age, but because it’s not a “real court.” Real courts, as Posner notes, don’t get to choose which cases they hear and that the very process of deciding which cases to hear is predecision of those cases. My point exactly on the recent Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar cases. For those interested, the article can be found at http://www.thedailybeast.com/articles/2013/11/07/how-i-write-richard-posner.html.
We may not be able to teach you to write like Judge Posner, but we can help you improve your writing. All you have to do is join us in San Francisco, December 9-13 for Legal Writing Week, and you’ll be well on your way to drafting Posner-esque legal documents. Or, if you prefer, keep San Francisco as the venue of choice and join us for the program Workplace Investigations; Misconduct Seminar, December 10-12. Or, one last option in 2013, FLRA Law Week I Washington, DC (December 2-6) begins in just a few days and still has space available. So many choices, and we haven’t even talked about our webinars or our onsite training. We’ll save those for another day.
So it’s onward and upward, to the next edition of the Newsletter. Read and enjoy.
EEOC Advice on LGBT Complaints
By Ernest Hadley
Believe it or not, I actually do spend some of my copious free time browsing through the Commission’s website. Hey, it’s better than some of the porno sites that a few of my clients have been caught browsing. Let me qualify that last statement by saying at least it’s safer, employment-wise that is.
Anyway, I’m not sure when this first appeared on the site, but the Commission, without any apparent fanfare, has issued some basic guidance to agencies on dealing with complaints by lesbian, gay, bisexual and transgender federal employees. The bottom line on the advice is, and the bold is Commission’s and not mine:
In accordance with EEO Pre-Complaint Processing Procedures set forth in MD 110 Chapter 2, EEO Counselors should assist individuals in clearly defining their claims. Lesbian, gay and bisexual employees who believe they have been discriminated against because of their sexual orientation should be counseled that they have a right to file a complaint under the 1614 process, because they may have experienced sex discrimination, as described above.
The guidance also requires that if agencies dismiss complaints from LGBT employees, they should be given EEOC appeal rights.
In addition to referencing its seminal decision regarding transgender discrimination in Macy v. Attorney General, EEOC Appeal No. 0120120821 (2012), the Commission cites a host of recent decisions in support of its admonition that complaints alleging discrimination on the basis of sexual orientation or transgender status should be accepted and investigation, if otherwise timely, as complaints of sex discrimination:
Claims by lesbian, gay, and bisexual individuals. Lesbian, gay and bisexual individuals may also experience sex discrimination, including sexual harassment or other kinds of sex discrimination. See, e.g., Brooker v. U.S. Postal Service, EEOC Request No. 0520110680 (May 20, 2013) (an ongoing pattern of comments and rumors referring to a complainant as being gay can be severe or pervasive enough to rise to the level of sexual harassment). Sex discrimination includes adverse actions taken because of a person's failure to conform to sex-stereotypes. See, e.g., Rosa v. Department of Veterans Affairs, EEOC Appeal No. 0120091318, 2009 WL 2513955 (E.E.O.C.) (August 3, 2009) (harassment against a male employee including repeated innuendos about his sexuality and verbal mocking using "very feminine voices" can constitute discrimination based on sex); Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873, 2011 WL 2663401 (E.E.O.C.) (July 1, 2011) (discrimination based on sex-stereotype that men should only marry women can constitute discrimination based on sex); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (December 20, 2011); 2011 WL 6960810 (E.E.O.C.) (discrimination based on sex-stereotype that women should only have sexual relationships with men can constitute discrimination based on sex); Baker v. Social Security Administration, EEOC Appeal No. 0120110008, 2013 WL 1182258 (E.E.O.C.) (Jan. 11, 2013) (Complainant's allegation of sexual orientation discrimination was a claim of sex discrimination because it was based on his gender non-conforming behavior, and the fact that a Complainant characterized the basis of discrimination as sexual orientation does not defeat an otherwise valid sex discrimination claim); Culp v. Dep't of Homeland Security, EEOC Appeal No. 0720130012, 2013 WL 2146756 (E.E.O.C.) (May 7, 2013) (allegation of sexual orientation discrimination was a claim of sex discrimination because supervisor was motivated by his attitudes about sex stereotypes that women should only have relationships with men).
This is actually what I’ve been saying right along ever since the Macy decision was issued, but it’s the first time I’ve seen the Commission say it this clearly.
An Answer to a Question EEOC May Not Wanted Answered
By William Wiley
Sometimes it's better not to know. A couple of weeks ago, you probably read a case summary from an email, written by one of our contributing authors, Laura Tarraban. The topic was "spoliation," a subject that doesn't come up very often in the business of federal employment law, but one that could have a significant impact, depending on how far EEOC wants to take the matter.
As Laura wrote, in a recent private sector discrimination case, the plaintiff won a sanctions motion because the employer's attorney did not issue a litigation hold order when the employee retained a lawyer and filed a complaint with EEOC, but rather waited several months after the complaint was filed when the case was headed toward court. Hart v. Dillion Companies, 2013 WL 3442555 (D. Colo. 2013). For those of you unfamiliar with the concept, a litigation hold is an action by a respondent (company or agency) taken when a potential plaintiff makes it clear that litigation is probably going to happen. The action is a directive -- usually from the respondent's legal office, but it could come from human resources -- to all employees who might have documents or other records in their possession related to the impending litigation to refrain from destroying those records. A respondent automatically has this responsibility, and no court order is necessary for the obligation to operate.
So what does a litigation hold directive look like? Well, if you do the sort of in-depth penetrating legal research we here at FELTG are known for (three minutes on The Google, first hit for "sample litigation hold"), you will find typical language like the following that is supposed to go into an email or memo to all employees - management and otherwise- who might reasonably be expected to possess records relative to the upcoming litigation:
As you may know, Ed Employee, has filed suit against our company claiming that Mike Manager engaged in both race and sex discrimination in relation to the selection of Connie Coworker for the position of Supervisory File Clerk. The position was advertised from August 1 thru 30, 2013. Ms Coworker was selected on September 30, and began serving in that position on October 1, 2013. In that connection, it is important that we preserve all records, official and unofficial, that may be relevant to the proceedings. You are to immediately search all records in your possession to determine whether any could be relevant to the law suit, and retain them indefinitely, as follows: [and then a page or two of what actually constitutes a record].
Now think about this sort of rule in the federal workplace. I've been at this business 35 years and I have NEVER come across an agency that routinely issues litigation hold directives every time an employee files a formal discrimination complaint. Although Hart is not controlling in the federal workplace, it is difficult to make a logical distinction between the rationale there that applies to an employee filing an EEOC complaint in the private sector, and a similar employee who files an EEOC complaint in the federal sector. In other words, if the principle of spoliation requires that all employer records in the private sector be subjected to a litigation hold order once a EEOC complaint is filed, why wouldn’t a federal agency have to issue a litigation hold every time a federal employee files a formal discrimination complaint with EEOC?
Now, I'm not arguing that this is the way it should be. Frankly, I'm hoping that I'm wrong. But if I am correct, just think what that does to our federal process. Today, without routine litigation holds at the formal EEOC complaint stage, an employee effectively files anonymously, with perhaps just the EEO staff and a couple of management officials involved having knowledge of the complaint. However, if the principle embodied in Hart were to be applied, as soon as an employee files a formal complaint, a litigation hold would be issued by whomever, thereby identifying to a lot of coworkers that the employee is accusing some manager of being a racist or sexist or whatever, and who that alleged discrimination official is.
I've had a number of long, rambunctious arguments with some of my colleagues who work primarily the appellant's/complaint's side of our business, regarding spoliation and an agency's obligation to preserve documents. One extreme point of view that has been offered is that EEOC expects an agency to retain every draft, every voice mail, every yellow sticky that might conceivably become relevant should an employee decide to file a discrimination complaint. I, of course, take the hard line pro-agency position that the preservation obligation activates once the employee makes it clear that he intends to pursue a matter in court; i.e., that the doctrine of spoliation does not apply in our administrative proceedings.
I'm willing to admit that there is scant case law on this issue from either MSPB or EEOC, and I've been around long enough to know that this is an issue in which I may be mistaken. However, if we ever do get definitive guidance from the Commission on this matter, and that guidance is in line with the Hart decision, the poison pill that travels with the obligation to retain records is the obligation to disclose what's going on to a whole lot of people who might otherwise be in the dark. And that just might be something that's bad for everyone.
How Not to Deal with an Accommodation Request
By Ernest Hadley
Without fail whenever I teach the medical documentation requirements of the ADA, whether it’s an open enrollment course, an onsite program or a webinar, I hear this refrain. “Employees can get their doctors to say whatever they want.” It’s an attitude that appears to be pervasive in the federal government and it’s an attitude that can get your agency in trouble.
I don’t know about your experience with doctors but my own experience, which I try to limit as much as possible, simply doesn’t square with the refrain. If it did, right now I would be on permanent disability leave from FELTG as a result of the PTSD inflicted on me by the mere experience of having Bill Wiley as a business partner. Actually, Bill’s a good business partner. He seldom questions my judgment perhaps calling his own judgment into question, and he even trusts me with the checkbook, despite my repeated demonstrations that I am mathematically-challenged, which is, in fact, a generous description of my math abilities. But, according to the refrain, all I need to do is tell the doc that Bill is the source of all things bad in life and the doc will say it’s true. Better yet, the doc will put it in writing.
The trouble with the attitude behind the refrain is that it causes agencies to doubt the employee’s medical documentation and either delay or outright deny accommodation in cases where the requested accommodation should be routinely granted. And that, in the end, costs agencies lots of money.
Want a prime example of what I’m talking about? Well, take a look at Smith v. Postmaster General, EEOC Appeal No. 0720090050 (September 17, 2013). The complaint in Smith was the victim of retaliation, see Smith v. Postmaster General, EEOC Appeal No. 0720050022 (June 29, 2005), at the Riverdale Post Office in Georgia. As a result, she suffered work-related stress and major depression. As an accommodation, the complainant needed to work in a collegial environment and the agency reassigned her to a modified-duty position in HR in a different facility. That assignment ended abruptly on July 3, 2007 when all employees on rehabilitation or modified duty assignments were instructed to report to their regular assignments beginning July 4. So, the complainant was now required to return to the Riverdale facility where she had been the victim of retaliation.
Ok. Let’s stop for a moment. How many of you out there already have your doubts about this complainant? Raise your hands. (I would suggest that those of you who raised your hands should immediately consult a physician for one of those doc notes described above.) Getting out FELTG’s trusty old Eight Ball, a relic that also serves as our crystal ball and explains many decisions made here at FELTG, I see a lot of hands, figuratively. And, you see, that’s part of the problem. We don’t even know all of the facts of the case yet and already there’s doubt.
To be honest, the Commission doesn't give a lot of facts in its 2005 Smith decision but we do know the Commission determined that the complainant was terminated in retaliation for protected EEO activity. The agency asserted that she was excessively late and tardy -- talk about redundancy in charges -- but she introduced evidence of other letter carriers who had comparable, and even worse, attendance records and received little or no discipline. The Commission awarded $85,000 in damages based on a showing that she suffered physical and emotional pain, was diagnosed with depression, anxiety and sleeplessness, had marital problems that led to a divorce, suffered a loss of family and friends, and experienced excessive crying, chest pains, back spasms, rashes, abdominal pains and weight loss.
Now back to the facts of the 2007 case. The complainant could not return to her position at Riverdale and sought psychiatric treatment. On October 1, 2007, her psychiatrist sent the agency a letter noting she had PTSD and panic disorder. He opined that the conditions began when she suffered retaliation at the Riverdale facility, subsided when she was assigned to HR and she suffered a relapse on being assigned back to Riverdale. He followed that up with a January 10, 2008 letter indicating that the complainant was able to return to full duty provided it was not at the Riverdale facility. He submitted more information on January 25, 2008, reiterating his previous findings and indicated that the complainant could return to work as along as it was at a different facility with a different manager.
Shortly after that, the Reasonable Accommodation Committee denied the request for accommodation finding that the complainant was not an individual with a disability. C’mon folks, even under the old law that governed this case this should have been a no-brainer. Oh, I’m sorry. Apparently, it was a no-brainer in the sense that no brains were actually used in making that determination.
On appeal, the agency made the wonderful argument that:
Even if Complainant's medical documents were timely and relevant, the Agency argues that those medical opinions should be discounted because they were based solely on subjective information given by Complainant, rather than independent assessments (such as personally visiting the Riverdale Post Office to assess whether the facility was a collegial work environment). "[A]ny individual that has practiced in the health care arena is aware that you can always find an individual that is willing to say what you want them to say to fit your case." Id. at 14.
(Emphasis added.) There it is again. That old refrain.
Things did not play out so well for the agency. Although the Commission did not directly address the agency’s comment in its analysis, it did go out of its way to include it in the agency’s contentions and I’m guessing that didn't play real well over at the Office of Federal Operations.
That attitude cost the agency some five years in back pay, restoration of annual and sick leave, reinstatement of all benefits including health care, life insurance and thrift savings, $120,000 in compensatory damages, $19,000 in attorneys fees and whatever the eight hours of ordered Rehabilitation Act training will cost.
I’m not saying that there aren’t bad docs out there. There are, just as there are bad lawyers, bad financial advisors, bad used car salesmen, and on and on. If the agency has 10 employees all being diagnosed by the same doctor with the same condition, by all means question the integrity of the medical information. Otherwise, tread carefully and watch the attitude.
The inherent attitude that employees’ doctors will say anything the employee wants can cost your agency big time. And, oh yes. If it happens to be in one of my cases, please, please go out of your way to emphasize that attitude in all your pleadings before the AJ and OFO. Hugs and kisses.
Pending Criminal Proceedings and Knee-jerk Indefinite Suspensions
By William Wiley
Sometimes it pays to revisit the way we've always done things. Take, for example, what most agencies do when they find out that one of their employees has gotten himself into a little criminal trouble. Most agencies propose, then implement, an indefinite suspension pending the outcome of the criminal proceedings. Once those proceedings are completed, the agency then moves forward with an administrative action (e.g., removal) if one is warranted based on the results of the criminal prosecution. Obviously, given the nature of criminal proceedings, it could be many months or even years before the agency is in a position to end the indefinite suspension and get the employee off its rolls. When it does finally take that removal action, the passage of time may well have darkened the memories of important witnesses. And if it does not act fast enough, it may even have to put the employee back on the payroll until it gets its act together to propose a removal.
Although the Board has long held that pending criminal proceedings form a legitimate basis for indefinitely suspending an employee, there is nothing that MANDATES that the agency invoke an indefinite suspension just because an employee has been indicted or is otherwise proceeding to trial for criminal misconduct. So how come many agencies routinely invoke an indefinite suspension in situations like these even though they don't have to?
Well, one good reason is that the agency may not have a practical alternative. If it has no evidence of what the employee did that constitutes the criminal activity, and knows only about the indictment, then the indefinite suspension is the perfect response. Once the criminal proceedings are concluded, the agency can then collect the evidence adduced as part of the criminal prosecution and proceed with the removal action, if warranted.
However, in the situation in which the agency already has evidence of the criminal misconduct (e.g., a surveillance clip of the employee leaving the office with the stolen laptop under his arm), there's another option. The agency can simply proceed with a proposed removal for theft of the laptop even though there are pending criminal charges related to the same matter. If the employee does not raise an objection, the matter would proceed as is usual, with a decision, implementation of the removal, and an appeal to the Board.
Of course, if the employee has read the Constitution, or his lawyer has, it is very possible that the employee will indeed object to the proposed removal based on the Fifth Amendment that says in relevant part, "No person ... shall be compelled in any criminal case to be a witness against himself." This privilege can be invoked "in any proceeding, criminal or civil, administrative or judicial, investigatory or adjudicatory" as long as the individual has a reasonable belief that the adduced information could be used against him in a criminal prosecution. Kastigar v. United States, 406 US 441 (1972).
But even if the employee objects, that does not necessarily mean that the proposed removal must be cancelled. It simply means that the employee is free to assert the Fifth Amendment privilege not to testify in the proceeding, not that the proceeding cannot go forward as initiated.
So you propose the removal. Here are a couple of possible outcomes:
Option 1: The employee chooses not to respond to the proposal, saying that doing so undermines his ability to defend himself in the criminal proceeding in which he may take the Fifth Amendment. You as management have two possible responses:
A. Issue an indefinite suspension, thereby acknowledging the employee's corresponding criminal complaint problem.
B. Issue the removal. The employee will then appeal to MSPB where the judge will no doubt grant a dismissal without prejudice if the employee moves for one pending the result of the criminal proceedings. The good news is that the guy is now off your rolls, for whatever that's worth. The bad news is that the judge might rule that by going forward with the removal in spite of the protest, you've deprived the employee of the right to make a meaningful response, thereby violating due process. Your argument, of course, is that it was the employee's choice not to respond and that you extended the right as you were obligated to. However, don't bet the farm on that argument prevailing.
Option 2: The employee chooses to respond, appeal, and testify in the Board hearing. That's right, some attorneys find this to be a good strategy to take, to NOT invoke the Fifth Amendment in the parallel civil or administrative proceedings. According to a recent article in the California bar journal, sometimes a successful defense in a parallel proceeding will dissuade the prosecutor from going forward in the pending criminal matter. Whether this is a good or bad strategy is not our issue. The point is that exerting or waiving the Fifth Amendment right to remain silent is a strategy matter for the employee, without a necessarily right or wrong answer.
Bottom Line: In my agency defense practice if I have independent proof of the misconduct that is the subject of a criminal proceeding, I proceed with a proposed removal rather than with a proposed indefinite suspension. The worst that happens is that the employee asserts the Fifth, and I then can indefinitely suspend anyway (or if the agency is feeling aggressive, go ahead and remove and let the Board sort it all out). Although a number of agencies automatically propose an indefinite suspension when there are parallel criminal proceedings, if you think about it, that may not always be the best approach.
Should I Tell You I’m Pregnant?
By Deborah Hopkins
Whoa, easy there. I am not, I repeat, NOT, pregnant. But, the title of this article probably got your attention, and since you’re already here, you might as well read on.
On December 5, FELTG is holding a webinar titled Successful Hiring -- Effective Techniques for Interviewing and Reference Checking. As I put together the description for this event a few months ago, I started thinking about some of the more interesting interviews I’ve endured over the years. Finally, I made a bit of time to write about them.
There are certain behaviors that should be advised against during interviews; while not illegal, these questions and comments don’t leave the applicant with positive feelings about the company or the potential job. I wish someone had told that to the restaurant manager who, during my interview for a summer job while I was in college, told me I was hot and asked me out on a date. Or, to the administrative assistant who years ago whispered to me that if I unbuttoned my blouse a little further, it might help set the right tone with her boss during an upcoming interview. Or, to the retail manager who, during the first two minutes of my interview, told me that her employees were a rough bunch, and I’d better be comfortable with off-color humor if I wanted to survive in her department. (I did not get/take any of those jobs.)
None of the above moments represents a high point in my life, but none of the comments rises to the level of illegal interview practices. There are certain topics which are completely off-limits during interviews, though, and you might be surprised by a few of the things you can’t legally mention. Below are just a few.
Are you married?/Do you have or plan to have children?/Are you pregnant?
This question has tripped up many a well-intentioned hiring manager, because it requires the interviewee to reveal marital status, pregnancy status, and perhaps sexual orientation. As an agency employer or hiring manager, if you have concerns about an applicant’s ability to work a swing shift, complete overtime work, travel, TDY, or meet other requirements, then ask the applicant about his or her ability to meet those job-related demands, and leave the personal details out of it.
Where are you from?/Is English your primary language?/What religious holidays do you observe?
Inquiring about an applicant’s national origin or religion is another no-no, and can get you into legal hot water before you can correctly pronounce Djibouti. The questions above come too close to that topic, so instead reframe the questions to clarify whether the applicant can speak and understand English, if that is indeed a requirement of the job. It’s also perfectly legal to ask whether an individual is legally authorized to work in the U.S. But steer clear of anything else that even flirts with probing an individual’s national origin or religion.
Do you drink alcohol?
This question, while seemingly direct, violates the Americans with Disabilities Act because alcoholism treatment is protected under the ADA. An applicant does not have to reveal any disability information during an initial interview, so stay away from questions related to alcohol use. Be careful, too, when inquiring about the illegal use of drugs. It’s okay to ask an applicant whether he’s currently illegally using drugs, because this is not protected under the ADA, but don’t go anywhere near questions about past addictions.
There are a host of other dos and don’ts, and I’d be remiss if I didn't recommend you attend our December 5 webinar to find out those, plus a lot more information on how to conduct successful interviews. Or, check out our DVD of the webinar Preventing Workplace Discrimination: A Focus on National Origin and Religion, Ernest Hadley and Gary Gilbert, on sale now in the FELTG store.
In the meantime, if you have interviews to conduct, maybe you should use a lesson I learned (the hard way) in my Constitutional Law class this semester: When you want to say something out loud but doubt whether you should because of how the question might come out of your mouth, it’s probably best to keep your mouth shut. No details on that one today, though -- it’s a story best reserved for another article.
WIGI Denial Mechanics Part III
Granting a WIGI after Improved Performance
5 CFR 531.411 sets requirements for review of the decision to deny a WIGI after the denial. The first portion of the regulation describes the process for granting the increase after a denial. That’s the simple matter of preparing a new rating and granting the increase after the employee has demonstrated sustained performance at an acceptable level of competence. Since a new rating is required, the minimum appraisal period would have to be met, so commonly the employee would have to show this higher level of performance for 90 or 120 days depending on the agency plan, but there is nothing that sets a time frame, so the agency could withhold this determination much longer. The only related regulatory requirement is contained in 5 CFR 531.412(b) which establishes that the effective date of the increase will be the first day of the first pay period after the acceptable determination has been made.
The FLRA has enforced the requirement that a WIGI being granted after a denial must be granted prospectively in several cases and circumstances. In a case involving the Centers for Disease Control and Prevention’s improper handling of an employee’s rating, Arbitrator William J. Miller, Jr. made a ruling that the employee should be placed on a PIP and if his performance improved he should be granted the WIGI retroactively to the original due date. The agency successfully argued that this violated the two provisions cited in the prior paragraph, and the FLRA struck that portion of the arbitrator’s award. Department of Health and Human Services, Appalachian Laboratory for Occupational Safety and Health, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention, 49 FLRA No. 110 (May 31, 1994).
In NTEU and Department of the Treasury, Customs Service, Washington, DC. 46 FLRA No. 67 (November 27, 1992), the Authority found a proposal from the union that the increase be granted retroactively to the original date that it was due was inconsistent with 5 CFR 531.412(b) and therefore nonnegotiable. The same result was reached in American Federation of Government Employees, Local 32 and Office of Personnel Management, Washington, DC, 4 FLRA No. 2 (February 6, 1984).
The FSIP has also ordered adoption of language that complies with the OPM requirement rather than a union proposal that an increase given in these circumstances be granted retroactively. See Local 1623, NFFE and South Carolina National Guard, Columbia, SC, 28 FLRA No. 81 (August 21, 1987).
Retroactive granting of an increase is not negotiable but establishing a set period for a determination is. The Patent Office Professional Association (POPA) proposed that six months of satisfactory performance would be sufficiently sustained to warrant granting of the WIGI. In POPA and Patent and Trademark Office, Department of Commerce, 29 FLRA No. 116 (November 6, 1987), the FLRA ruled that this was within the duty to bargain.
Required Review of Denied Increases
The second requirement covered in 5 CFR 531.411 is the required 52-week review. A determination must be made every 52 calendar weeks following the original eligibility date as long as the WIGI continues to be denied. This seems innocuous on the surface, but as a practical matter, presents some interesting issues.
Obviously if the employee is performing at an Unacceptable level or in an agency where there is no Minimally Successful level then there are probably much more significant actions underway and there may not be a 52-week anniversary to be concerned about. However, if your agency allows for Level 2 ratings, an employee could stay at the Minimally Successful level for years. Ostensibly, the employee could never be granted another WIGI for the balance of his or her Federal career.
How does this 52-week review work? Someone has to track the date for each review; hopefully the automated systems in use today are sophisticated enough to add a tickler date for this to avoid having to create a manual record. Someone has to watch the appraisals coming in each appraisal cycle to ensure that if the employee is rated at the Fully Successful level in the future the increase is granted at that point.
How are these determinations conducted? If the last appraisal was Minimally Successful, does someone in HR contact the manager to determine if there has been a change in the level of performance? Does it matter if the last appraisal is six months old when the anniversary date rolls around? There are no notice requirements in the regulations, so nothing has to go to the employee to say that the determination to deny the WIGI is unchanged, unless of course the agency agreed to such a provision or put that in an agency directive. If I were managing an agency appraisal program I would recommend that a memorandum for the record be written to establish that the required review took place.
What are the employee’s rights after a 52-week review if the answer is that the increase remains denied? Nothing is granted by regulation. Clearly the action is not appealable to the Board, since only a negative reconsideration decision is appealable. Could the employee challenge that a 52-week determination was not made when it should have been? That would seem to be a matter subject to either the administrative or negotiated grievance procedure. What would the remedy be for failure to do a review? Completing the review? If performance is below Fully Successful then the increase can’t legally be granted, whether the review was completed as required or not. It is an interesting conundrum.
I would love to hear from you about any procedures that may have been set up in your organization to handle these 52-week reviews, both from the administrative side and any provisions that may have been negotiated with your unions. I won’t identify agencies by name, unless you have something really good that you are willing to share. E-mail the info to email@example.com. If I get lots of responses, that will be our topic next time. If not, we will move on to WIGI appeals.