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 firstname.lastname@example.org. If I get lots of responses, that will be our topic next time. If not, we will move on to WIGI appeals.
Ok, so this Congress has been more distinguished by its inability to act rather than anything it has actually done. That’s why it’s surprising to see that the Senate has finally taken up the Employment Nondiscrimination Act and, as this is written, appears to have the 60 votes necessary to send in on to the House. Could it be that after all these years of having the bill that would prohibit employment discrimination on the bases of sexual orientation and gender identification die in committee that this do-nothing Congress would be the one that final gets it done? Of course, having only recently seen what happens when the Senate sends a bill to the House, I’m not holding my breath.
Speaking of breathing, there is still breathing room to register for FELTG’s 2013 close-out sessions. So, before the calendar changes to 2014, you have exactly three chances to attend an open enrollment seminar: FLRA Law Week (December 2-6 in Washington, DC), Legal Writing Week (December 9-13 in San Francisco), and Workplace Investigations: Misconduct Seminar (December 10-12 in San Francisco). You have exactly two chances to attend a FELTG webinar: Significant Federal Sector Developments: The Latest and Greatest is November 7 (yes, that’s tomorrow, and yes, you can still register!), and Successful Hiring -- Effective Techniques for Interviewing and Reference Checking is Thursday, December 5. And you have as many chances as you want – or as our calendars will allow – to send one of our instructors to your agency to conduct onsite training. So many choices, but so little time. Don’t delay!
On to the newsletter. Read and enjoy.
EEOC Pursues GINA Violation
By Ernest Hadley
A couple of issues ago, I railed—and, yes, railed is probably an accurate description—about the abysmal state of OPM medical determination regulations being such that following the regulations can lead an agency right into an ADA violation by requesting medical information that is not job-related and consistent with business necessity under the ADA. I did so with no real expectation that someone over at that agency would see the error of the OPM way and do something about it. But, I did feel a whole lot better after getting the rant out of my system and, as a collateral benefit, maybe even kept a few agencies out there from making impermissible medical inquiries.
Yep, at FELTG, we do place a great deal of emphasis on the collection of medical information, medical examinations and the restrictions that apply. We’ve done webinars on the subject, and cover it during Absence & Medical Issues Week and during EEOC Law Week. You might get the impression that we simply have run out of things to write and talk about which is why we keep coming back to the subject. But that’s not why we do it. We do it because the same issues keep cropping again and again in the case decisions we see and in our own cases.
So far, we haven’t seen any activity on the federal sector front in terms of GINA—the Genetic Information Nondiscrimination Act. That’s why, while perusing the EEOC website, I was attracted to a press release about the Commission suing the Abatti Group for violating the ADA and GINA. The suit provides some insight into how the EEOC is interpreting and applying GINA.
The suit, filed in the U.S. District Court for the Central District of California, alleges that the Abatti Group engaged in a “two for,” that is, it violated both the ADA and GINA by requiring job applicants to take an impermissible medical examination and answer impermissible questions about their medical conditions. According to the release, part of the information sought from applicants related to their family medical history. The Commission further alleges that one “applicant reluctantly disclosed that he was hospitalized one time due to an issue with his heart, a condition shared by others in his family” and that, as a result, he was not hired for a permanent position by Abatti.
This is a prime example of why I get so exorcised by 5 CFR 339.104 and its inclusion of the “history of the medical conditions, including references to findings from previous examinations, treatment, and responses to treatment” as information that an agency may request in making a medical determination. While the history of medical condition has no real place in making employment decisions, that history, including the family history, is a significant piece of medical information. That’s why doctors include such information in their reports. They’re not writing the report for you. They’re writing it for other doctors.
The reason the Commission believes the Abatti situation is a “two for,” i.e., a two violations for the price of one, is that not only is the collection of medical history information on the employee or applicant a violation of the ADA, but to the extent that family history is included, this is genetic information and it violates GINA, as well.
In fact, the EEOC, in an attempt to do you a favor, put escape-hatch language in its GINA regulations. The statute exempts agencies from liability where the collection of genetic information is inadvertent. “[T]he acquisition of genetic information will not generally be considered inadvertent unless the covered entity directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information.” 29 CFR 1635.8(b)(1)(i)(A). Subsection (B) goes even further and provides some suggested language to include in requests for medical information:
If a covered entity uses language such as the following, any receipt of genetic information in response to the request for medical information will be deemed inadvertent: “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.”
Two things about the recommended language. First, even though it’s in the GINA regulations, it would be a really good idea to include this language in any request for medical information. Second, while the regulation provides recommended language, you get no points or originality here. There’s no reason to change as much as a comma in the recommended language. Hey, I mean, when the EEOC tells you this language will do it, what point is served by coming up with something of your own?
Notice, too, that in addition to alleging a violation of two different statutes, the Commission is also alleging two independent violations. One is the request for the information itself and the other that at least one applicant didn’t get hired as a result. It’s possible that a complainant could prove the request violated GINA, but be unable to prove the decision not to hire was because of the genetic information that the employer received. And for federal sector folks, that’s one of the take-aways here. Even if the information obtained isn’t used in an employment decision, the request for the information is an independent violation.
GINA was passed, in part, out of concern that employers might not hire or would discharge someone if they found out that the individual or a family member had a genetic condition that could impact the employer’s health care costs. Now, there aren’t likely too many federal managers that would not hire someone out of concern for the government’s health care costs. But they might fail to hire someone out of concern that the condition of either the individual or a family member might interfere with attendance. Bingo. The agency is no longer dealing with a case where the only remedy is garden variety damages for making an impermissible request for medical information. Now, it has a full-blown selection case where the remedies could include retroactive instatement to the job, full back pay and benefits, compensatory damages and, of course, no small amount of attorneys fees.
Oh, and you should thank the Commission for publicizing its private sector work. Paying attention to what it’s doing there could prevent your agency from making similar mistakes.
How to a Handle a Sick Employee
By William Wiley
This may be the most common difficult situation that we come across in our business: the employee who honestly is too medically-challenged to come to work on a full time basis, but who insists on remaining a federal worker. Even though those with compassion may feel very sorry for the employee, there is no rational basis for retaining an individual as a federal employee who cannot perform the essential functions of a position.
As a first step, most everyone knows about the requirement that an agency accommodate an employee's disability. So if the employee who is not coming to work because he is sick meets the legal definition of having a "disability" (and not all medically-challenged employees do), then the agency must do the reasonable accommodation three-step:
1. Try to modify the current position so the employee can perform all of the essential functions. Failing that,
2. Try to find a vacant position under recruitment within the agency at the same grade for which the employee is medically and professionally qualified for reassignment. Failing that,
3. Try to find a vacant position at a lower grade, and offer a voluntary demotion.
So you've attempted accommodation, found nothing that works, and you continue to have a medically-limited employee who is not coming to work regularly. Now what?
As we teach in our famous Absence & Medical Issues Week seminar - next offered January 13-17, 2014 - you have two options; propose removal for either:
1. Failure to Maintain a Regular Schedule, or
2. Medical Inability to Perform.
Although these two actions feel a lot alike, they are fundamentally different when it comes to procedures as well as the agency's burden of proof on appeal.
Failure to Maintain a Regular Schedule: This type of removal is also known as an "approved leave" removal. For those of you who have been around a while, you may have heard it called a "Cook" removal, so named after the lead case that set out the principle, Cook v. Department of the Army, 18 MSPR 610 (1984). And for those you with a strange sense of decorum (like us), you may have referred to it as "Cook-ing" the employee.
The dilemma the Board found itself in prior to Cook was this. The Board has long held that an agency cannot discipline an employee for being on approved absence: annual leave, sick leave, or leave without pay. That makes sense because management has approved the absence and it would be unfair for it to be allowed to then punish the employee for something that management had OKed in advance. However, there are a number of situations beyond an individual's control in which an employee cannot report to work on a regular schedule. Being too sick to come to work is one of those, and it doesn't matter whether the absences are sequential or sporadic. Once we establish that the absences are beyond the control of the employee and that there is no disability accommodation available, we can start the Cook procedure (without concern as to the leave status of the employee):
1. Allow enough absences to accrue so that the total is beyond a "reasonable" period of time. And herewith lies the first challenge with Cook. What the devil constitutes an unreasonable number of absences? Does it vary from one position to the next depending on the nature of the work being performed? If so what are the criteria for evaluating that differential? We know from Board case law that absences taken as part of leave entitlement under the Family and Medical Leave Act cannot be counted in this total. See McCauley v. Department of Justice, 116 MSPR 484 (2011). Our best FELTG-guesstimate based on the few decisions we have interpreting this language is more than six months of continuous absence or more than a day a week for more than a year. However, these are truly best-guesses because MSPB has never said how it determines what's beyond reasonable, only when it determines that something is beyond reasonable.
2. Once the absences total more than what is reasonable, send the employee a letter that says he either has to start coming to work as scheduled, or he will be removed.
3. Allow the employee some period of time to get his act together and to report to work regularly. A good bet at a minimally reasonable length of time is 30 days, but the Board's never said specifically and OPM has no regulations to help us out.
4. Finally, once you've allowed the employee that reasonable period of time to improve his attendance record after he's been absent beyond what is reasonable, you can then propose removal under Cook. Then, be ready to prove you needed the guy to work on a full-time regular schedule, and hope to goodness that all your guesses at reasonableness are upheld on appeal.
Man, oh, man; that's a lot of time and a lack of clarity in a couple of reversible areas. About the only time I use this approach in my practice is when I am brought into a situation AFTER all this Cook-ing around has happened; after the employee has already been absent a long period after his FMLA entitlement. Or, if the employee is absent for reasons that are not personally medically related (e.g., sick kids), but management feels compelled to grant approved leave (LWOP) because it has a big old heart and just cannot stand to charge the pitiful employee with AWOL. As legal tacticians, we all know that a removal for AWOL following progressive discipline is a relatively straightforward, easily-defensible action to take. But sometimes what makes sense tactically is not what management is willing to do.
However, when I have the luxury of being brought into a situation earlier on before all this absence has occurred, there's a much more expedient way of handling this type of problem employee. And the explanation of that alternative can be found in the companion article in this newsletter, But I Don't Want to Wait a Year to Cook Him.
But I Don't Want to Wait a Year to Cook Him
By William Wiley
In the companion article to this piece, we described a classic difficult problem employee situation: the guy who is too sick to come to work regularly. We pointed out that there are two routes to resolving this situation, and described one in detail: a Cook approved absence removal. However, we noted that the Cook procedure has a couple of significant challenges:
1. It takes a long time, and
2. We have to defend our decisions as to what is "reasonable."
As an alternative removal procedure, and the alternative of choice in my practice, consider the following.
Medical Inability to Perform: Here's a common scenario found all too often in the federal workplace. The employee has been chugging along for a number of years, performing OK, but not doing nearly as well as he thinks he is. Then, along comes a change in the workplace: new supervisor, increased work demands, maybe reassignment to another office that requires a longer commute. All of a sudden, the employee shows up with some official medical documentation from his family physician that says he suffers from a health condition that prevents him from being able to perform some or all of the essential functions of his position. As you cannot accommodate his disability, he cleverly invokes his rights to FMLA, and off he goes on 12 weeks of approved absence.
Alternatively, the employee unquestionably develops a disabling condition right in the middle of a stellar career. Or, another alternative would be that instead of the employee just disappearing from the workplace with a debilitating medical problem, he comes to work some days, but not others, without being able to predict when he can work and when he cannot. The procedure we recommend here at FELTG in all three of these situations is the same:
1. Do a job analysis to identify the essential functions of the position. The immediate supervisor, perhaps in consultation with a disability coordinator, goes through the employee's position description and performance plan, and identifies the physical and mental requirements of the essential functions of the position. For example, the position description of an employment attorney might say, "Represents the agency in appeals and grievances involving workplace disputes." Some of the physical and mental requirements necessary for this function might be:
- Makes oral presentations
- Travels throughout the country
- Clearly articulates complex thoughts and arguments
- Works without control over break periods
2. Provide the job analysis to the employee in a letter that directs him to have his physician identify which of the functions cannot be performed, or how a function might be performed with an accommodation. Set a time limit for getting that information back to you, maybe 15 days.
- If he refuses to bring in the information, discipline him for refusing to comply with an order. Removal might even be appropriate. See Jones v. Department of Justice, 98 MSPR 86 (2004).
- If the information is incomplete, give him a second letter and tell him to get clarification or risk removal.
3. Once you get the employee's medical documentation, have the supervisor document whether the employee can perform the essential job functions with or without accommodation. Assuming he cannot,
4. Have the disability coordinator (or a senior staffing specialist) document whether there are any vacant jobs available to which he can be reassigned. Assuming he cannot be reassigned,
5. Issue a proposed removal based on all the above documentation. Do a full Douglas Factor analysis to justify why the employee could not be accommodated or reassigned.
For those readers who work the union side, be sure to let your members know that although management has to look for vacant jobs for medically limited employees, it does not have to create a job for them (unless your CBA says so). The employee who submits medical documentation to her supervisor that establishes she cannot perform even one essential job function may have just fired herself.
So there you have it. When confronted with an employee who does not come to work for medical reasons, you have a choice between two options. As you can see, I prefer the Medical Inability to Perform approach as it is faster and less subjective. However, I can also appreciate that there are some situations in which the Inability to Maintain a Regular Schedule (Cook) approach might be preferable. Whichever way you go, be SURE to understand that although these approaches can be used for the same type of situation, they are fundamentally different and call for different types of evidence and procedures to be upheld by the Board.
Those Pesky Contractor Complaints
By Ernest Hadley
Whenever the talk turns to EEO complaints being filed by federal contractors, it calls to mind the comments of former astronaut and Senator John Glenn as he was sitting atop the Atlas rocket ready to attempt to become the first human to orbit the earth in Friendship 7. His thoughts as the countdown neared blastoff turned to the fact that the rocket had been built by the low bidder. It was probably not a comforting thought. And, of course, by now we all know the problems encountered by the Affordable Health Care Act website which involved some 50 contractors. Sometimes you do get what you pay for. Not only that, you now get EEO complaints from contractor employees who believe they have been the victims of discrimination. Isn’t life grand?
Years ago, in Ma v. Secretary of Health and Human Services, EEOC Appeal Nos. 01962389, 01962390 (1998), the EEOC adopted the common law of agency test to determine if a contract employee should be considered an agency employee for Title VII purposes. Under that test, the Commission considers 15 factors though, generally speaking, no single factor is outcome determinative. The Ma factors are:
1. The employer has the right to control when, where, and how the worker performs the job.
2. The work does not require a high level of skill or expertise.
3. The employer furnishes the tools, materials, and equipment.
4. The work is performed on the employer's premises.
5. There is a continuing relationship between the worker and the employer.
6. The employer has the right to assign additional projects to the worker.
7. The employer sets the hours of work and the duration of the job.
8. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.
9. The worker does not hire and pay assistants.
10. The work performed by the worker is part of the regular business of the employer.
11. The worker is not engaged in his/her own distinct occupation or business.
12. The employer provides the worker with benefits such as insurance, leave, or workers' compensation.
13. The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes).
14. The employer can discharge the worker.
15. The worker and the employer believe that they are creating an employer-employee relationship.
In the last few years, the Commission has placed a greater emphasis on Factor 10—whether the work being performed by the contract employee is “part of the regular business of the employer.” As an example, in Pietsch v. Secretary of Health and Human Services, EEOC Appeal No. 0120090933 (2009), the Commission found that a contract employee working for a staffing firm should be considered an agency employee where he worked on the agency premises for eight years, used agency space and equipment and performed what the Commission described as the “regular business of the agency.” The Commission noted that:
Here, complainant has served at NIH for some eight years, a long duration. She was engaged by LSY to exclusively provide her services to NIH. Her work was performed on the agency's campus, and she used the agency's computer network in doing work. She was paid an hourly wage. Complainant, who oversaw aspects of construction projects, duties included participating in agency budget meetings, monitoring project spending, and reviewing payment applications by the a construction company, work which is part of the regular business of the agency.
See also Haskins v. Secretary of Homeland Security, EEOC Appeal No. 0120091884 (2009).
Those cases can be compared with Tassy v. Secretary of Homeland Security, EEOC Appeal No. 0120112472 (2012) where the Commission found that a contract aircraft mechanic was not an employee of the agency for Title VII purposes because there was no evidence in the record that aircraft maintenance was part of the “regular business of the agency.”
Recently though, the Commission issued another decision finding that because the contractor retained the power to terminate the contract employee she was not an agency employee for Title VII purposes even though the work she performed certainly seemed to fall within the “regular business of the agency” criterion. The complainant in Murphy v. Secretary of Veterans Affairs, EEOC Appeal No. 0120132014 (September 17, 2013), was a medical instrument technician employed by Associated Health Professionals at the VAMC in Long Beach, CA. The Commission noted:
It is uncontested that the majority of the factors point to a joint employment relationship: Complainant was required to attend Agency orientation and training, he was supervised by an Agency employee who did his performance evaluation, his schedule was set in accordance with the needs of the Agency and he needed its permission and that of Associated Health prior to taking leave, he could be subject to random drug testing by the Agency, his work was central to the Agency's mission and performed on its premises using Agency equipment, it is highly unlikely Complainant was allowed to hire and pay assistants, he was not engaged in his own distinct business, he was paid for hours worked, he was required to be well groomed and wear professional attire when serving the Agency, he served the Agency for nine months, and the Agency had authority not to accept his services (factors 1, and 3-11).
Despite those factors, the Commission found that the complainant was not an agency employee because the contractor continued to employ him even after his services were terminated by the agency.
With the increased use of outside contractors, particularly contractors routinely performing the “regular business of the agency,” it’s important to keep an eye on these cases. The real eyes, though, should not be on whether the EEO office gets it right in terms of dismissing or accepting a complaint, but on whether the agency is inadvertently setting itself up for complaints by contract employees by not paying sufficient attention to the Ma criteria.
Excuse Me, Do You Have a Problem?
By Deborah Hopkins
I have a problem. As I type, my laptop battery is draining and I’m worried about it running out before I finish writing this article. Yes, I could plug the power cord in, but it wouldn’t do any good because for some yet-to-be-explained reason, I don’t have power in my apartment. One second the power was on, and the next second it wasn’t. I live in a very old building and the electric system is ancient. Changing the fuses didn't work. Nobody else in the building is having an electrical problem. I don't have a breaker box, and I’ve run out of options unless I want to live the rest of my life by candlelight, so I’m patiently (or not so patiently) waiting for the electrician to arrive and tell me what might be wrong here. Yep, I have a problem.
As I often like to do, I’m going to endeavor to make this problem – and the attempt to solve it – relatable, so I invite you to share in my attempted transfer of skills and life lessons, because these steps might also apply to a help you solve problem you’re dealing with.
Dale Carnegie says there are nine steps to effectively solve problems at work. I’ll paraphrase the first eight below, but first let me say that many problems are best solved by relying on others. Sure, there are some problems that can be handled alone, but I learned years ago it’s most efficient to ask for help. So, here are a few ideas on how to take the team approach:
1) Briefly state of the problem. Awareness is the first step. Verify that you understand what the problem actually is. You don’t have to know how to solve it (yet), but you do need to identify the specific issue that exists, and bring others into the loop.
2) Ask for feedback on the possible causes of the problems. (For my electrical problem, this involved initially calling my dad, who is an electrical engineer, and also getting feedback from my apartment building engineer and property manager, about what the electrical issue might be.)
3) Ask for possible solutions to solve the problem, and for evidence to support each recommendation.
4) Make frequent summaries as things progress, and when sufficient solutions have been discussed, select the best possible option, and put it to the test. A solution without a plan is not a tangible solution at all. And, as Mr. Carnegie says, “Sometimes the best possible solution may be a collection or combination of several recommendations.”
5) If possible, appoint an individual, team or committee to see that the decision is converted into action. (In this case, I had to call the electrician and ask him handle it. I definitely know this is something I’m not equipped to deal with myself.)
6) It’s sometimes wise to express your own personal ideas after all others have expressed theirs. After all, what’s the point in asking for help if you’re primarily set on your own agenda?
7) Encourage an open environment. By that, I simply mean that when an invitation for feedback or suggestions is made, allow the people you’ve asked to help you problem solve, to actually offer their ideas.
8) Keep the problem solving discussion moving forward and on track. Don’t get lost in the weeds or diverted onto a rabbit trail. If other problems arise, those can be dealt with separately. (So if a plumbing issue comes up today as well, I’ll handle that apart from the electrical problem.)
Well, my laptop battery is now extremely low and the electrician has just arrived, so I’d better cut this short. If this problem doesn’t get fixed my next article might be handwritten. In the meantime, good luck utilizing the steps above for any problem you might encounter in the workplace – from workplace conflict management to an underperforming employee, and everything in between.
WIGI Denial Mechanics Part II
By Barbara Haga
Acting on a Reconsideration Request
The reconsideration process for GS WIGIs is outlined 5 CFR 531.410. As discussed in the last column, the agency is required to provide a prompt written final decision that advises the employee of the reasons for sustaining the denial and the rights the employee has to appeal the reconsideration decision.
When does a reconsideration decision have to be issued? The regulations only say prompt. Has the issue of timeliness been addressed by the MSPB? Most assuredly. Let’s begin with the case of Todd Jack, an employee of the Patent and Trademark Office (PTO).
Mr. Jack was a GS-13 Patent Examiner. He was due a WIGI to step 3 on September 22, 2002. His supervisor did not believe that Jack was performing at an acceptable level of competence and certified this on September 17, 2002. Jack received an SF-50 denying the increase but was not issued a written notice of the denial at the time.
To further complicate this case Jack was on paid administrative leave at the time that he completed the waiting period pending completion of an internal investigation. Lest we paint Jack in too sympathetic a light you should know that the reason he was on nine months of administrative leave was because of an investigation and subsequent adverse action based on making false statements, inappropriate behavior, and other related charges. The PTO proposed to remove him but that removal was mitigated to a 120-day suspension. After the events of the WIGI case Jack was ultimately removed for poor performance. You can read the details about the 752 action, the issue of whether there was a grievance procedure in place, the whistleblower allegations, and the performance removal if you wish to check out the series of eleven MSPB cases and one EEO case with Jack’s name on them. But, I digress.
The notice of denial was actually delivered in May of 2003 when Jack came back from the period of administrative leave. But Jack had previously written to the Deputy Commissioner of Patent Operations, Ms Kepplinger, on November 6, 2002 asking her to reverse the denial and to grant the WIGI retroactive to the due date. His 2002 letter also said that if she was not the one with authority to grant the request to “… please see that the individual with the power does so.” Once he received the denial notice in May 2003 he filed a grievance with his supervisor asking for the WIGI to be granted; he did not file with the designated reconsideration official.
In the initial decision on the denial the AJ found that Jack had not requested reconsideration with either of his actions, thus the Board did not have jurisdiction. On petition for review, the Board ruled differently. Jack v. Department of Commerce, 98 MSPR 354 (2005).
The Board noted that the agency did not provide notice, and cited the agency’s response to a show cause order in which the PTO acknowledged that Jack learned that he did not receive the increase when it was not reflected in his paycheck. The only other notice given at that point was a telephone conversation between Jack and an HR office employee. The Board’s decision states:
On review, the agency asserts that, at the time of the appellant's November 6, 2002 letter to Kepplinger, he was on administrative leave pending a decision on his proposed removal. PFR File, Tab 6, at 4. According to the agency, it did not provide written notification and justification for the denial of his within-grade increase until May 15, 2003, because he did not return to work until earlier that month. Id. Nevertheless, as 5 U.S.C. § 5335(c) makes clear, if an agency makes a determination that an employee's work is not at an acceptable level of competence, the employee is entitled to "prompt" written notice of that determination and an opportunity for reconsideration. No exceptions are provided for employees who are on administrative leave or any other type of leave. Moreover, although the Board has not specifically addressed the meaning of the word "prompt" as it is used in this statutory provision, common sense dictates that written notice provided more than seven months after a negative determination does not fall within its terms.
The Board determined that Jack’s letter to Ms. Kepplinger was a timely reconsideration request. Because the PTO failed to give Jack prompt written notice, failed to give him his reconsideration rights, and failed to act on the request he did make, the Board determined that it had jurisdiction and remanded the case to the AJ for a new determination. In this particular case there was a new issue that arose regarding coverage under the negotiated grievance procedure, so the case was dismissed – which was probably good for the PTO under the circumstances.
(Note: As I was reading in preparation for putting this column together, I found quite a few remand cases like Jack. The PTO wasn’t the only office that had either failed to give notice or delayed a long time in doing so.)
Important Lessons on Reconsideration
There are a number of important lessons highlighted in the Jack decision:
a) Not giving notice of the denial and the right to request reconsideration is a sure fire way to find your case in a future HR Current column or FELTG Newsletter. There is no good way I can see to make your case to the Board that such a failure is reasonable. Remember the increase was earned on the due date. The denial is being issued after the fact.
b) Not answering is an answer. Not responding to an employee’s request to have the situation reviewed is inexcusable. How can an agency present a case to the Board about an employee’s deficient performance with a straight face when their own officials don’t answer employee correspondence regarding personnel actions?
c) The form of the reconsideration request is not magic. Jack didn’t submit a letter with “Request for Reconsideration” in the subject line. But, he did write to a senior manager and asked her to fix his WIGI and the Board found that was enough.
d) Seven months is too long. The FLRA upheld an arbitrator’s ruling in DHHS, Appalachian Laboratory for Occupational Safety and Health, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention 49 FLRA No. 110 (1994) that a four-month delay was too long. The longest window that the employee is given to proceed in this process is 30 days for the filing of the appeal after the reconsideration decision. In my humble opinion that would be a good rule of thumb for management to follow in deciding how quickly the notice has to be issued.
Next time I’ll look at the requirement to make a new determination 52 weeks after the denial and then on to grievance and appeal rights.
WIGI Denial Mechanics Part I
By Barbara Haga
Even though Within-Grade Increase (WIGI) denials sometimes are lumped in the same category as performance-based downgrades and removals, they are actually quite different. Let's walk through the process.
Notice of Denial
5 CFR 531.409(e) sets the notice procedure for GS employees. The notice is to be communicated in writing as soon as possible after the employee completes the waiting period. (e)(1). In addition, the notice is to give the reasons for the negative determination and identify the respects in which the employee must improve his or her performance. (e)(2)(i).
Finally, the notice must advise the employee of the right to request reconsideration and identify who will make that
The differences between a standard 432 or 752 proposal are many. First, the typical due process right to 30-days' advance notice is not here. This notice isn't a proposal; the increase is denied. There is no specific time frame after the date of WIGI eligibility within which the agency must act -- it's just as soon as possible. I'll talk about how the MSPB has dealt with timeliness at this point in the process in a later installment.
The denial notice must include information about how performance has been deficient in the past and must identify how the employee must raise the level of performance to be eligible for an increase in the future. Unlike a PIP, which only needs to address performance in the future, the denial will recount failures and omissions and errors that occurred prior to the due date. That level of future performance will be Fully Successful (Level 3) no matter whether there is a Minimally Successful (Level 2) in your agency system or not. That is something that is clearly different in a PIP where the person only has to reach the level above Unacceptable to be retained.
How far back must you go in the waiting period? A history lesson is in order here. In the olden days, the OPM regulation on within-grade determinations said that the decision had to be based on the employee's performance during the waiting period. Based on that 1979 regulation, MSPB held agencies to consideration of performance during the entire waiting period. But in 1986 OPM revised the regulations. In Hudson v. Department of the Army, 49 MSPR 202 (1991), the Board explained the change:
On March 11, 1986, the Office of Personnel Management amended its regulations governing the granting and withholding of WGSIs. 51 Fed. Reg. 8,396 (1986). The regulations ... provide that a determination to withhold a WGSI "shall be based on a current rating of record made under Part 430 of this chapter." 5 C.F.R. § 531.409(b). Because the action at issue in this appeal occurred after that amendment was made, we find that the agency was not required to base its negative determination on the appellant's performance during the entire waiting period, and that it instead was required to base that determination on the appellant's current rating of record.
Thus, since the March 11, 1986 regulations were issued you need enough performance documentation to substantiate a rating of record (your agency's minimum appraisal period would be the bare minimum) or if you have the employee in a PIP then you need enough evidence of deficiencies to carry an assessment of performance below Fully Successful as discussed in the last column and the Bowden case.
What else is in the notice? The notice must advise that the employee has 15 days to file a written request for reconsideration providing in that request the reasons why the agency should reconsider. It is important to note that there is no right to an oral reply in this process. Management could hold a meeting but there is no regulatory requirement to offer it or do it if the employee asks. There could be an investigation where the employee might be able to provide additional supporting information for his or her arguments, but again that is at management's election. Thus, for the employee to adequately put forth his or her case, everything needs to be in the request for reconsideration since this action could be decided on the record.
If the employee or his or her representative files a reconsideration request, 5 CFR 531.410 outlines the next steps which are to be followed:
The 15-day time limit may be extended when the employee shows he or she was not notified of it and was not otherwise aware of it, or that circumstances beyond his or her control prevented him or her from requesting reconsideration within the time limit. (b).
Representation for a bargaining unit employee is covered by the applicable provisions of 5 USC 71 and the relevant labor agreement. Personal representatives are subject to disallowance in the case of a conflict of interest, unreasonable costs to the government, or a work assignment which precludes release of the individual. (c).
The agency sets up the file which contains: 1) the written negative determination and the basis for the determination, 2) the employee's written reconsideration request, and 3) the agency's decision. There are two other items that could be required depending on what processes were used in reaching the decision. If there was a personal presentation, then a written summary or transcript must be made and placed in the file. If there was an investigation, then the report of investigation must be included. (a)(2).
The employee and his or her representative have to be able to see any document in the file. They must also be given an opportunity to submit a written exception to any summary of the employee's personal presentation. (a)(2).
If the employee is otherwise in a duty status he or she will be granted a reasonable amount of official time to review the material relied upon to support the negative determination and to prepare a response. (a)(3).
The role of the reconsideration official seems more like the role of a grievance official in the administrative grievance procedure than that of a deciding official in an adverse action case. What's the job? He or she must decide if there will be a meeting or investigation, whether to disallow a personal representative, and whether to sustain the negative determination. After that the regulations require that the agency issue a prompt written final decision. (a)(4).
In WIGI Denial Mechanics Part II we will discuss some cases that highlight how the reconsideration process should work (and, of course, what not to do), and then we will move to appeal rights.
For more information, see Federal HR Services, Inc. at http://www.fedhrservices.com/
We hope that by now you’ve had a chance to dig out of your inbox because we’d hate to think that otherwise you’ll be missing the return of our FELTG Newsletter. That’s right, now that you’re back so is our witty and insightful commentary. Ok, ok. How about our sometimes witty and occasionally insightful commentary? Does once in a while and rarely work better for you? Hmm? I know a body that “once in a while” and “rarely” are accurate descriptions of how it works. But enough about Congress, let’s talk about you. Better yet, let’s talk about us and what we’ve got coming up in the next few weeks and months.
Tomorrow – yes tomorrow, October 24 – we’re hosting a webinar called Perspectives on Legal Ethics for Government Attorneys. It’s been pre-approved for 2 hours of Ethics CLEs by Virginia, which has reciprocity with a number of other state bars. It would be utterly unethical for you to shun your ethics requirement, so we’re accepting registrations until 11:00 a.m. eastern the day of the training. The program runs from 1:00 p.m. – 3:10 p.m. eastern. Register your entire site!
We also have spaces remaining in our upcoming FLRA Law Week, held in Washington, DC, December 2 – 6, so join Bill Wiley and Peter Broida to learn everything you ever wanted to know – and some things you didn’t want to know – about federal sector labor relations. If the west coast is more your style, we have two options in December: Legal Writing Week (December 9 – 13) or the three-day Workplace Investigations: Misconduct Seminar (December 10 – 12). We hope to see you at one, or all, of these stellar programs.
Back to the newsletter. Read and enjoy.
Barack Obama to Attend FELTG’s FLRA Law Week
By William Wiley
Oops - typo. That title should read, “Barack Obama SHOULD Attend FELTG’s FLRA Law Week.” And so should Harry Reid, John Boehner, and all those “leaders” of our country who have managed to shut down the federal government recently.
And why is that, you might ask. What does FLRA Law Week have to do with our elected representatives? Do they need to form a union and go on strike? Do they need to know about formal discussions and Weingarten rights? No, they all need to come to our session specifically dedicated to the art of negotiation, because from what I’ve heard on the telly, they don’t even know what the word “negotiation” means. Here are some sample statements, as best I can remember them:
Republican Leader: “We’ve made four counter-proposals, and the Democrats won’t budge. They’re refusing to negotiate!”
President Obama: “Tell those Republicans that I will not negotiate regarding the debt ceiling!”
OK, kids, cool down there. We know that you each have your respective positions on these important and weighty matters, and we’re not about to get in the middle of your Ping-Pong arguments on substance (although we proudly provide every full time FELTG employee full health insurance, so you know where we stand). However, we just can’t let you misuse the word that is often used to describe the very first human enterprise: negotiation.
Contrary to the manner in which the word has been used by the politicos, good faith negotiations do not require a change in position. Rather, the courts (and FLRA) have long recognized that to survive a charge of “failure to negotiate,” a union or management must establish that:
1) It was willing to accept proposals from the other side,
2) It considered the proposals, and
3) It responded to the other side with its decision.
Note that nothing within the concept of negotiations requires that the parties keep giving something to the other side in response to a proposal. If this were not true, then all that a party would need to do to get something would be to make a proposal. And neither side to a negotiation – by definition because negotiating parties are equal in bargaining power – can be forced to give up anything.
If President Obama were a management negotiator for a federal agency (that would be SO COOL), it would be perfectly legal for him to sit at the table and say, “No,” “No,” “No” over and over again regardless of how many proposals come across from the union. As long as he can honestly say, “I saw their (stupid) proposal, I thought about it (for 10 seconds), and I responded (while choking back my desire to laugh heartily while pounding them on the head).” The President is indeed negotiating with the Republicans and they with him.
With all due respect, and with a desire to be technically accurate, here is what the President should have said to the Republicans:
“I have your proposals regarding the debt ceiling. I do not like them in a box. I do not like them with a fox. I do not like them in a house. I do not like them with a mouse. I do not like them here or there. I do not like them anywhere. I do not like your proposals one darned bit, but to negotiate – here I sit.”
And that, my friends, is why I am not a Presidential speechwriter.
Psst. Don’t Tell Anybody, But I Work for the CIA
By Ernest Hadley
I once had a client who was a law enforcement agent who had the great misfortune to be stabbed in the leg by a prostitute at 2:00 a.m. while driving a government vehicle. The misfortune was further complicated by the fact that there was a discrepancy between the location of the puncture wound on his pants and that on his leg. His story: The prostitute jumped into his car when he pulled up to stop at a red light and he was stabbed during the ensuing fray to get her out of the car. Despite my best efforts to convince him that there might be a more reasonable explanation, as well as one that at least approximated the truth, he persisted in his story and, ultimately, we parted ways as attorney and client. It’s also my understanding that soon thereafter he parted ways with his employment.
When it comes to credibility determinations, there is a concept called “inherent plausibility.” It’s not so much of a legal concept as it is one of common sense. If, on its face, testimony about a version of events is so ludicrous that no reasonable person would believe it, then it is not credible testimony. The MSPB embodied this concept in Hillen v. Department of the Army, 35 MSPR 453 (1987), and the EEOC has adopted the same concept in cases like Williams v. Secretary of Veterans Affairs, EEOC Appeal No. 01996891 (2002). In law school, this concept was imparted to us as the so-called “laugh test.” In other words, your client’s version of events had to be one that you could get up and advocate without laughing.
That concept is on the reasons why a recent Associated Press story written by Federic J. Frommer peaked my interest. Here's the lead paragraph and, as a former journalist, I can say it’s a good one because it immediately caught my attention, which is precisely what a lead is supposed to do:
A former high-ranking official with the Environmental Protection Agency pleaded guilty Friday to stealing nearly $900,000 from the agency over 13 years by failing to show up for work while falsely claiming to be working for the CIA and for filing bogus expenses.
The story goes on and it seems that John C. Beale, a former deputy assistant administrator in the Office of Air and Radiation, started taking a day off each week beginning in 2000 after telling an EPA manager that he had been selected for an interagency special advisory group and that he would be working with the CIA’s Directorate of Operations. Beginning in 2005, an EPA manager signed off on a research project for Beale with no internal controls and no oversight. Beale made five or so visits to Los Angeles for the “project,” and was reimbursed some $57,000 for his travel, which included personal visits to family members in California.
It gets better. In June 2008, he didn’t show up for work for six months telling EPA managers that he was working on a research project or at Langley where the CIA is based. All told, he took some 2-1/2 years off from work and, in the process, defrauded the government of nearly $900,000.
C’mon, folks. No one bothered to check out his story? I mean if a client came to me and said the reason he had been AWOL for six months was that he was secretly working for the CIA, my first response would be that he might want to rethink his defense. If he persisted in the story, my second response would be to give him a list of attorneys, mostly ones that I don't particularly like, he could contact about representation.
Raising three kids, I’ve learned that there are degrees of inherent implausibility. I’ve come to accept that scratches and dents spontaneously appear on cars; lights, when left to their own devices, turn themselves back on; and no one, I repeat no one, ever drinks the last beer in the refrigerator. Ok, I’ve had my doubts, but none of them ever tried to blame it on the CIA and even I’m not that gullible, mostly because of this thing called “inherent implausibility.”
Oh, and a note to the FELTG staff: Those times when I suddenly and inexplicably go incommunicado, I’m just on a secret mission for the CIA. Call ‘em if you like. I suspect they’ll neither confirm nor deny it which, of course, merely bolsters my credibility.
Ours is a Business of Mistakes
By William Wiley
Someone much smarter than I am once said, “Those who do not learn from their mistakes will live to repeat them.” If you think about it, federal employment law is a business of mistakes, mistakes we find out about on appeal of an action accompanied by a reversal by the Merit Systems Protection Board. Unfortunately, the system is not set up so that an agency can call the Board in advance and say, “Hey, if we fire this dude, will you guys affirm the action?” No, my friends, we have to take the action first, then have the Board review it after the fact, and issue a decision that says we either did it right or we did it wrong. And it is from those decisions in which an agency “did it wrong” that we often learn some of the most important lessons from the Board.
In our MSPB Law Week seminar, we sometimes point out a rule of discipline or performance that comes from a very early decision of the Board, something in the early-to-mid 80’s when MSPB was originally dealing with certain fundamental issues. And sadly, we often also are able to cite to cases in the past year in which an agency made the same mistake; e.g., allowing a WIGI to be granted in the middle of a PIP. As a profession, we don’t seem to be learning from our past mistakes because we seem to keep repeating a number of them.
Take, for example a Board decision issued a couple of weeks ago in which the deciding official made a classic Stone due process mistake by calling around, then relying on information gathered in that call to decide whether to remove the employee. Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999). Frankly, the decision is not even worthy of a citation because there is nothing new to be learned from it: DECIDING OFFICIALS CANNOT CONSIDER FACTS NOT PROVIDED TO THE EMPLOYEE! (We here at FELTG are looking into arranging for a discount price for any of you seminar participants out there who would like to have this admonition tattooed onto an exposed body part, color of your choice). This due process mistake has been made repeatedly for over of a quarter of a century now, and I am relatively certain that it will continue to be made into the future, with the automatic reversal of the removal, reinstatement, back pay, and attorney fees that accompany a due process violation.
Somebody at an agency screws up when a Stone mistake is made. Either a deciding official (DO) becomes a loose cannon on the stand or in deposition, ignoring the strong advice of the agency representative, or the agency representative has failed to follow the three-part no-Stone procedure we recommend in all removals:
1) Meet with the DO the day of the proposal and beat into him or her the importance of not considering ANYTHING other than the proposal materials plus the employee’s response,
2) When drafting the decision letter for the DO, once more inquire forcefully as to whether there is ANYTHING he or she has thought about in making the decision other than the proposal and response, and finally,
3) When prepping the DO for deposition or testifying on appeal, place a Bible (or Quran or whatever floats his or her spiritual boat) in front of him or her and have him or her swear on the graves of his or her forefathers and foremothers that he or she can truthfully testify that he or she considered NOTHING other than what was in the four corners of the proposal and response.
We all now have been reminded again about the importance of Stone and due process, and we are grateful to the agency that lost this case for that. However, when an agency loses a case like this – or any other case for that matter – it should not stop there. If we are to grow beyond mistakes like this, the mistakes should be identified, dissected, and procedures put into place to make sure that mistakes are not repeated. That’s why it is so important to get the word out within an agency that has a reversed-action, even if some fingers need to be pointed and perhaps some closed-door discussions have to be had. It is one thing to make a mistake; it is another thing to repeat it again out of over-concern for someone’s delicate ego.
I have often felt that I was born to be a bad example. If there is a way to mess up a disciplinary or performance action, I have probably done it somewhere along the way in my career. However, I can say with some degree of modesty that I don’t think I have made the same mistake more than once (professionally speaking, of course; my college days are replete with the same mistake being made every Friday and Saturday night for four years).
As some of you will remember, President Clinton once announced that instead of boxers, he was a “briefs man.” Well, I’m a “de-brief” man. I highly recommend that you learn from your mistakes every time someone points them out to you, whether it be MSPB, EEOC, or in arbitration, by de-briefing each adverse decision that comes down, and getting the word out within your agency as to how to avoid the same mistake in future cases. There may be some embarrassment along the way, and a need for a stiff upper lip, but that’s why science invented adult beverages.
Friedrich Nietzsche once said (in paraphrase), “Whatever doesn’t kill you makes you stronger.” Well, that’s true only if you know about it. And debriefing cases to find the mistakes is how we come to know about them, and thereby become stronger. If you are not doing debriefs now within your agency or union, you are missing a huge chance to become stronger and better.
Your Tax Dollars at Work
By William Wiley
I bet you know this guy. He’s the one in the office who is always right when everyone else is always wrong. As we teach in our FELTG classes on performance, the psychologists call this characteristic “optimism bias.” [Editor’s Note: We know the rest of you have another name for this guy, but that wouldn’t make it past your email filters.] Most all humans have it to a degree; the tendency to not be objective about ourselves, to see ourselves as a little smarter, a better dancer, better looking than we really are when measured objectively. Unfortunately, there are those among us who have this characteristic at the PhD level, who simply cannot own up to that maybe – just maybe – the other guy is right and they are not. And if you have been around a federal workplace for very long, you have seen this person in action.
One such individual appears to be the appellant in a recent case decided by the Board, O’Donnell v. Department of Agriculture, 2013 MSPB 69 (September 10, 2013). The next time you write a check to the IRS, or notice that tax deduction from your wages on your leave and earnings statement, think about how much this case cost the government, just so the appellant could try to establish that he was right and everyone else was wrong.
Way back in 2006 when George W. Bush was in the middle of his second term, the employee conducted a review of the application of a citizen for a government benefit, and found that the benefit was deserved. Subsequently, the employee’s supervisor reviewed the same application, and decided that the employee had made a mistake, that the benefit was not warranted, and ordered that it be canceled. The citizen appealed to a different agency and the employee in his official capacity supported the appeal, saying that his supervisor was wrong. As a result, the agency suspended the employee for three days for failing to comply with a rule. My guess is that the suspension cost the employee maybe $850 or so in salary.
Believing the suspensions to be wrong, the employee filed a complaint with the Office of Special Counsel (OSC) asserting that he had been suspended for participating in an appeal process. The law calls this a “b(9)” violation based on 5 USC 2302(b)(9). OSC looked into the matter and decided that there had been no b(9) violation, and dismissed the complaint. Subsequently, the employee filed an Individual Right of Action (IRA) appeal with the Board. A Board AJ determined that an employee claiming a b(9) violation may not file an IRA appeal, and dismissed the appeal as not a matter within the Board’s jurisdiction. The employee challenged that decision on petition for review (PFR) to the three Board members, and the Board sided with the AJ; only individuals who file a b(8) complaint (a complaint alleging whistleblowing under 5 USC 2302(b)(8)) can file an IRA, not individuals who file a b(9).
So the individual, being a quick learner, files a new complaint with OSC, now claiming a b(8) violation (aka whistleblower reprisal). Having learned from the Board’s previous rulings in his case, and taking advantage of the no-time limit for claiming whistleblower reprisal, the employee is now back before OSC on the same issue. Once more, OSC dismisses the complaint finding no proof of whistleblower reprisal. And by now having the address of the local Board regional office in his Outlook contacts where he can do so easily, the guy files a new IRA appeal with the regional office. This time, he was careful to identify it as a b(8) issue and not a b(9) issue, so he’s got that old IRA appeal process on his side for the first time, thereby forcing the AJ to rule on the merits of his appeal rather than on jurisdiction.
Not so fast, says the AJ. This guy has been here before, just last year before a different AJ. Since the issues are the same, the result is the same, and the AJ finds that the rule of “collateral estoppel” requires that the IRA appeal be dismissed. Once more, our wily appellant files a PFR with the Board, challenging this latest dismissal of the merits of his claim of mistreatment. Upon its review, the Board disagrees with its AJ and holds that a claim of b(8) mistreatment is fundamentally different from a claim of b(9) mistreatment, and therefore collateral estoppel is inapplicable to this case. HOWEVER, rather than deciding to remand the case to the AJ for reconsideration (thank goodness), the Board concludes that the appellant is not a whistleblower. It reasoned that the matter that the appellant claims constitutes blowing the whistle (his expressed disagreement with his supervisor’s judgment regarding the award of the benefit) is a mere policy disagreement and not the sort of “disclosure” that fits into the definition of true whistleblowing. The Board in its analysis pointed out that even if the supervisor’s decision was wrong, the IRA/whistleblower procedure is not the forum in which to have that decision corrected. Statutory protection for whistleblowers “is not a weapon in arguments over policy or a shield for insubordinate conduct. Policymakers and administrators have every right to expect loyal professional service from subordinates.” LaChance v. White, 174 F.3d 1378 (Fed. Cir. 1999).
Poor guy. After seven years, he still can’t get anyone to referee the disagreement he is having with his supervisor. It may have cost the government a quarter of a million dollars to defend itself (using GSA estimates for the costs of two appeals plus two OSC investigations), but hey – this man has been deprived of $850 of salary. There are no bad guys or good guys in this story. That’s just the price we pay for a protected civil service.
Whether it should be or not, I leave that issue for others to decide.
When It Comes to EEO, the Theory Counts
By Ernest Hadley
One of the things that Gary Gilbert and I emphasize during EEOC Law Week, and it might even be safe to say that we preach, is the importance of understanding not just the basis of discrimination that the complainant is alleging but the theory under which the complainant is proceeding. Yep, the basis tells us why the complainant believes that he or she is the victim of discrimination—i.e., race, color, sex, national origin, etc.—but the theory tells something equally if not far more important; namely, how the complainant believes a protected basis is being used to his or her disadvantage. The theory, in turn, dictates the elements of what the complainant needs to prove and the agency’s defense. A hostile environment claim, for example, has distinctly different elements than, say, a failure to accommodate or retaliation claim. Get the theory wrong and there’s a good chance you get the outcome wrong, as well.
A complainant isn’t required to plead his or her case with any legal precision. That’s why we have EEO counselors to assist complainant in framing their claims. Sometimes, counselors get it wrong and other times the agency EEO office gets it wrong in accepting or dismissing claims. What we really need to focus on is factually what did the complainant tell the EEO counselor and what in the way of a claim or claims are fairly represented by those facts.
Even those who should know better sometimes get it wrong and Caldwell v. Postmaster General, EEOC Appeal No. 0120101263 (2013), is a recent example.
The complainant alleged that she was subjected to sex and disability discrimination when she was denied the opportunity to regularly pump breast milk for her newborn and that her breaks were more strictly scrutinized than breaks by other employees. The administrative judge determined that the complainant was not an individual with a disability and not entitled to reasonable accommodation.
Well, yes, it’s true that the Commission says that pregnancy is a “natural condition” and not an underlying impairment so it can’t be a disability. EEOC Compliance Manual, Section 902.2(c)(3). Without a disability, there’s nothing to accommodate. (I have no personal experience and I realize there are those out there who might dispute whether pregnancy is a “natural condition.” Those are the Commission’s words, not mine.)
So far, so good, except despite the label the complainant placed on her claim, this was never a reasonable accommodation case. It was a straight disparate treatment case and that’s exactly what the Commission found on appeal. The Commission in Caldwell found that complaint should have been analyzed as an allegation of disparate treatment based on sex.
What happened in this case? Well, the agency conducted an investigation that included lots of evidence that was not relevant because the elements of a failure to accommodate claim are distinctly different from a claim of intentional discrimination based on disparate treatment. No doubt, the hearing record contained similarly irrelevant evidence and it took an appeal simply to set the case on the right track.
What should have happened? The agency, in the first instance, should have dismissed the disability claim under 29 CFR 1614.107(a) for failure to state a claim. The complainant’s failure to allege that she had a covered disability should have been flagged as fatal to the claim. When the agency didn’t do it, the administrative judge should have. Presumably, that would have focused the case from the outset on the proper theory of discrimination, the proper elements and defenses, the relevant evidence, and maybe even the right outcome the first time around.
And that’s why we emphasize, or preach, the importance of properly identifying the theory of discrimination involved in a complaint. Can I get a hallelujah?
America Dodges a Furlough Bullet, Mostly
By William Wiley
MSPB has just begun to issue decisions regarding furlough actions, and, woooo-weeee, do we see a fundamental difference among the members as to who should run America. See Chandler v. Department of the Treasury, 2013 MSPB 74 (September 18, 2013) and Department of Labor v. Avery, 2013 MSPB 75 (September 18, 2013).
Avery lays down the law for the furloughing of ALJs, a specialized category of federal workers. If you are furloughing ALJs, you need to read that short decision in its entirety. However, as most of our readers are not furloughing ALJs, we'll avoid a full analysis and just hit the high points:
1. The standard for furloughing an ALJ is "good cause," a different standard from that for furloughing a regular Title V civil servant.
2. ALJs are not a "protected class" when it comes to selecting positions for furloughs.
3. One group of employees (e.g., ALJs) can be furloughed for a longer period than another group of employees as long as management has a bona fide reason for doing so. This principle also would be relevant to the furlough of non-ALJs; i.e., the agency will have to explain why it picked some employees for furlough, but not others.
The other points articulated in Avery are restated also in Chandler, including a demonstration of the disparate thought at the Board as to how America's government should be managed, so let's take a look at that watershed decision. In summary, the Top Ten© holdings of the majority's opinion are:
1. The standard for short-furloughing (30 days or less) a regular Title V civil servant (i.e., not an ALJ) is the general "efficiency of the service" standard common to all adverse actions.
2. MSPB will look to RIF principles when adjudicating appeals of short furloughs.
3. Management has to prove that its furlough decision was a "reasonable management decision" and that it furloughed employees in a "fair and even manner," e.g., "uniformly consistent." See Clark v. Office of Personnel Management, 24 MSPR 224 (1984).
4. MSPB will not review an agency's budgetary decisions per se.
5. MSPB will not review the equities of which days an individual is furloughed, whether some employees were allowed to accept furlough days in lieu of other employees, or similar matters relevant to how the furlough is administered.
6. However, MSPB will review whether some but not all employees who were furloughed also were paid overtime on work days to see if certain favored employees were relieved of the financial consequences of furlough by the assignment of overtime.
7. The Board also will look to see whether certain favored employees were given bonuses to offset salary losses resulting from the furlough.
8. The Fabulous Douglas Factors are inapplicable in furlough appeals.
9. MSPB will review the agency’s process for providing the adverse action rights of being allowed to respond to a proposal and to be represented in the response, see 5 USC 7513.
10. Put another way, when an employee appeals a furlough action, the agency will need to prove that:
A. The furlough was proposed and the employee given an opportunity to respond.
B. It had a valid reason for furloughing some employees, but not others (essential v. non-essential determinations).
C. It did not give some employees preferential treatment by the assignment of overtime or the awarding of bonuses.
And that’s it. So far. The Chandler decision is the result of an interlocutory appeal challenging certain discovery rulings made by an AJ. Although highly substantive, a decision dealing just with discovery requests is going to be more limited in scope than a decision that fully adjudicates a furlough appeal on the merits. So stay tuned as this topic develops.
And the bullet that was dodged in all of this? Well, the Chandler decision was split 2 to 1 with Vice Chairman Wagner dissenting on the scope of the Board’s review of furlough appeals. Whereas the Chairman and the Member wisely concluded that MSPB should not review agency spending decisions and that an agency is not required to satisfy the Board’s sense of equity, Vice Chairman Wagner concludes, “I [do not] discern anything about the nature of an agency’s budget allocation process that would render it inaccessible to third-party review.”
In other words, Vice Chairman Wagner believes that an agency should justify its decisions to MSPB as to how it is spending its budget relative to the decision to reduce budget expenditures by conducting a furlough. Specifically, she would require an agency to produce as evidence and defend its budgetary decision to conduct a furlough in relation to:
1. Employees who have been hired and paid overtime since the announcement of the furlough,
2. The administrative cost of conducting the furlough,
3. The hiring of contract employees since the announcement of the furlough,
4. The amount of money the agency will continue to expend on items that could have been cut out, but were not (guess who would be deciding what “could have been cut”),
5. The timing of the decision to furlough while the agency was still engaged in negotiating with the union, and
6. Whether some employees were allowed flexibility in scheduling furlough days and others were not.
In a nutshell, Vice Chairman Wagner believes that she and her colleagues are in a better position to make budgetary and other decisions in a time of sequestration than are the agency managers specifically hired to make these decisions for America.
Oh, Mama. Was that ever close.
Judges, Ethics, and Furloughs
By William Wiley
All of you admitted to the DC Bar can skip this article. That’s because I’m sure that, like me, you read the bar journal “Washington Lawyer” from cover to cover every month when it hits the old in-basket. Otherwise, how would we know which of our colleagues was disbarred recently or which fictional book on law someone thinks we should read in our “spare time.” Frankly, if a lawyer working in DC has any “spare time,” he or she probably ought to be disbarred.
For the rest of you, this might be of interest. In a recent edition of the journal, there was a nice long article regarding a recent bar ethics opinion (No. 365; that’s an ethics opinion for every day of the year) involving furloughs. The quandary presented by the opinion was a situation that is way too likely to happen over the next few months and it involves the concept of an attorney’s “individual interest” conflicting with the interest of a client:
Can a government lawyer who has been furloughed ethically represent the agency in the defense of a furlough action appealed to the Board?
Of course, the agency knows that it has furloughed a particular attorney when it assigns her the responsibility of defending the agency in the appeals of other furloughed employees. However, under the DC Rules of Professional Responsibility, client knowledge and approval is not enough to resolve this conflict with an “individual interest.” In addition, the lawyer has to reasonably believe that she will be able to provide competent and diligent representation in spite of the involved individual interest. As the opinion points out, “That may be a difficult standard to meet when the lawyer is pursuing her own challenge to the furlough while being asked to defend the agency against substantially similar challenges by other affected agency employees.”
In fact, the issue goes beyond what the agency knows and what the lawyer believes. An analysis of the rules that govern this situation reveals that in addition to the lawyer and the client concluding that representation is OK, a hypothetical “reasonably prudent and competent lawyer” in her situation would also have concluded that there was no problem providing “competent and diligent” representation. The greater the overlap between the lawyer’s claim in her appeal and the claims of the employee/appellant in his appeal, the more difficult it would be for a hypothetical attorney to reach a conclusion that representation could be provided.
And don’t think that the matter is resolved just because the lawyer at issue is directed to provide representation in spite of the dual-furlough dilemma. If you have a JD hanging onto the end of your signature, you know that when it comes to legal ethics, you may have to suffer personal adverse consequences to avoid running afoul of an ethical constraint. In other words, if your boss orders you to do something unethical, you are expected by the rules of our profession to refuse that order, thereby being insubordinate and subjecting yourself to possible discipline, perhaps removal for Refusing to Obey an Order. In spite of a supervisory directive otherwise, an attorney has an affirmative obligation not to represent a client in matters that she does not reasonably believe she can handle competently and diligently.
Although the opinion does not go to the next step, that doesn’t’ stop us here at FELTG from raising perhaps an even more significant ethical dilemma. MSPB has announced that it has furloughed its administrative judges as part of the sequester and the recent shutting down of government. If those judges are members of the DC bar, or another bar with analogous rules, would not a furloughed AJ be ethically prohibited from adjudicating a furlough appeal? Certainly if the judge was pursuing a personal appeal of the furlough action; perhaps not if the judge had accepted the furlough without appealing it. But who really knows?
Here’s the bottom line for Board management. If any AJs who have been furloughed conclude that they cannot adjudicate a furlough appeal because of these or similar ethical constraints, the Board will either have to allow that judge to pass on adjudicating furlough appeals (there are a gazillion at last count), or consider disciplining the AJ for insubordination. And if Board management and the AJ reach an agreement that ethically a furloughed judge can fairly rule in furlough appeals, MSPB will have to be ready to defend that decision before the Federal Circuit should either party to the appeal argue that such an assignment violates the requirement that a hypothetical attorney would have reached the same conclusion.
There are days when I miss being in the mix of things back at MSPB. Clearly, there are some issues I would like a chance to challenge internally, just like in the old days. But this quandary is one that reminds me why life outside government is not so bad. It is a lot easier to reach weighty conclusions in matters such as these when it’s just us FELTG Folks making decisions. Our hats are off to those of you who keep the government running in spite of the constipation caused by Congress.
Can I Get a Witness?
By Deborah Hopkins
There are two lifelong lessons I’ve learned since entering this unique little field of federal sector employment law:
1) The answer to almost every legal question is, “It depends.”
2) Never ask a witness a question ________________________________.
The first lesson has served me well in law school, and has often allowed me a brief respite from the effects of the Socratic method. While I mentally scramble to come up with acceptable analyses for the hypotheticals my professors love to pose, it buys at least seven seconds of thinking time.
The second lesson, the answer to which is “you don’t know the answer to,” is one we at FELTG teach, and stress, in our onsite hearing practices seminars, and also as a part of the upcoming MSPB & EEOC Hearing Practices Week. Witness prep goes far beyond the above though, so I’ve assimilated a list of important things to remember as you prepare a witness for deposition and hearing. They may seem basic, but hey, after a two-week shutdown a refresher is never a bad idea.
Explain to the witness why he or she is being called. Being called as a witness for an EEOC or MSPB hearing can be intimidating, especially when it’s the witness’s first time, so be clear with the witness why he or she is being questioned. Tell the witness why you think his or her testimony is important to that case. Allow the witness to review any related documents, as well as any previous statements that have been made on the record.
Let the witness know what to expect during the proceedings. Because of the stress associated with testifying at hearing, you’ll want to make your witness as much at ease as possible by giving him or her specific details about what to expect during the proceedings. Describe the physical layout of the hearing room. Talk about the structure and agenda for the hearing, from the process of checking in, waiting in the green room, to being sworn in.
Instruct the witness on proper demeanor to exhibit on the stand. Different from the frowned-upon practice of “coaching” a witness, this is simple instruction in appropriate communication skills the witness should display. Tell the witness to first listen to the entire question, before attempting an answer, and to take a breath before giving an answer. Tell the witness not to get combative, defensive, or argumentative, with opposing counsel or the judge. Tell the witness to keep answers short – especially during cross-exam – and to stop talking once the question has been answered. If a witness is sure about the facts in question, tell him or her to use “I remember” instead of “I think” or “I believe,” both which sound weak and less credible. Also, let the witness know it’s common for the judge to ask questions, and not to be alarmed by that.
Know what the witness is going to say. This directly correlates to #2 in the introduction above. Proper witness prep includes running through all the questions you plan to ask, as well as all the questions opposing counsel will ask, and being confident in the answer your witness will provide.
Keep it quiet. Be sure to let the witness know he or she should not discuss testimony with anyone other than counsel, until the proceedings are over.
Honesty is the only policy. Most importantly, the witness needs to know he or she must be honest when answering questions on the stand. If the witness is honest, he has nothing to hide and this will mitigate the anxiety and nerves. (A note to agency or employee reps here: if the truth is not in your favor and is detrimental to your case, it might be a good time to talk about settlement.)
There’s a lot more to witness prep, but this is a just general guide to get you started, now that everyone is back to work and playing catch-up. Good luck out there!
Welcome to FELTG Newsletter Lite. Just as you don’t know whether you will be reporting for work when this edition comes out, we don't know if anyone will be at work to read our world-famous, or maybe infamous depending on your point of view, Newsletter.
Believe it or not, and I realize there’s plenty of room for skepticism, the Newsletter takes a fair amount of work. It starts with Bill, Deb and me coming up with ideas for articles. Sometimes are easier than others. Then we may actually have to do some research or -- shudder -- read and digest some cases. Next, is the actual writing. Deadline for getting articles to me is the Friday before distribution. Ok, so sometimes it’s more like Saturday or Sunday. I put the Newsletter together and edit it. Then, it’s off to Deb and Bill for an attempt at catching all the errors that I’ve left standing.
From there, the Newsletter goes to Lezli, who posts it on our website and then prepares the email edition for distribution. Back to Deb for one last check that all is well and, finally, Lezli sets it to deploy on Wednesday morning.
So, the simple fact of the matter is that we don’t want to do all that work for a Newsletter that no one will be there to read. Just as important, we don’t want you to miss our finely-crafted, insightful articles in the clog of your inbox in the event that the good folks we elected to take of our business don’t get it done. The result is a shorter than usual Newsletter, or FELTG Newsletter Lite, guaranteed to have a third fewer calories than our regular edition. Of course, if you’ve been eating them rather than reading them, perhaps it’s time to rethink your career choice.
In the meantime, attorneys pay attention: let FELTG help you meet your annual Ethics CLE requirement by registering for the October 24 webinar Perspectives on Legal Ethics for Government Attorneys. This program has been pre-approved for two hours of Ethics CLE credit from Virginia, and because Virginia has CLE reciprocity with many other state bars, this is a program you won’t want to miss.
If you are actually sitting at work reading this Wednesday morning, we apologize for the brevity of this edition but are genuinely happy for the reprieve even if it’s only temporary.
Also, our genuine thanks for what you do everyday.
OPM May Get You Killed
By William Wiley
Those of us who write for this here FELTG newsletter do our best to provide you fresh content without repeating too much of what we've said before. However, some things are so important that they deserve repeating. And this particular topic is so important -- especially today -- that I will probably repeat it periodically until they take my iPad away from me in The Home (for excessively accessing "adult" websites, most likely).
The good folks at OPM are responsible for the content of much of Title 5 of the Code of Federal Regulations. Specifically, they have the responsibility for the content of Chapter 752, the chapter that provides guidance and regulations for most all of the federal government when it comes to taking adverse actions based on misconduct. And even more specifically, they control that section of 5 CFR 752 that tells agencies what to do with employees once management has issued an employee a proposed removal:
5 CFR § 752.404 Procedures.
(3) Under ordinary circumstances, an employee whose removal ... has been proposed will remain in a duty status in his or her regular position during the advance notice period.
Seasoned practitioners as well as attendees at our FELTG seminars know that this requirement is stupid. No compelling government purpose is served by allowing the employee to continue working once removal is proposed. His or her supervisor has already determined that the employee's services are no longer warranted. Why allow someone whose supervisor has proposed removal to continue to have access to a federal workplace? In addition, a number of factors militate toward getting the employee out of the worksite:
• He will produce little, if any, work during the notice period because he's about to be fired.
• He may incur a workers compensation injury, thereby necessitating a continued government paycheck even though he's already demonstrated to his supervisor that he does not warrant federal employment.
• By staying at work, he continues to have access to agency resources such as data files, confidential documents, and matters highly personal and sensitive to citizens and to the government. That information can provide a decent source of income to someone who has just been fired and needs a little spending cash.
• He may kill somebody.
Things like the above do not happen often. But how many times do they have to happen for you to have a really bad day? The CFR continues that in "rare situations" an agency that has proposed a removal can place an employee on administrative leave rather than leaving him in the workplace. However, to do so the agency is expected to make a determination that the employee is dangerous. In fact, I have had employee relations specialists tell me that they can foretell who is likely to be dangerous. As someone who was a psychologist early in his career before becoming whatever it is I am today, an arrogant self-aggrandizing pseudo-professional statement like that takes my breath away. Not only is it the height of hubris and unsupported by any training or experience imaginable, it also has the potential to be deadly.
I have directly contacted the individual responsible for this section of the CFR and argued that it should be changed so that employees who have a proposed removal are generally placed on administrative leave. The response I got back was that I could comment on it whenever OPM got around to rewriting it. Several weeks later after there was a killing in a federal workplace by a federal employee, I again contacted that individual and asked that he reconsider putting off a rewrite. He responded that the change I recommended would not have prevented the deaths that had just occurred. He failed completely to see the significance of workplace violence in general and how he had the ability to reduce the possibility that in a particular situation, death could occur.
As I write this article, the investigation into the killings at the Washington Naval Yard is on-going. Currently, there is a developing feeling that these murders are a form of workplace violence related to the shooter's termination from active duty with the Navy. We may never know the answer to that for sure, and the change I recommend to the CFR would not have stopped these killings. However, the recent events show how deadly it can be when an individual with a government ID and a grudge decides to take out his anger on federal employees.
5 CFR 752.404(3) as written is an example of a grotesque policy decision that could cause many people to be killed. Maintaining that policy for no apparent good reason is both reckless and an expression of a wanton disregard for the safety of federal employees and the citizens they serve. I do not like writing about death in the federal workplace, and I do not like criticizing my friends at OPM, but I will continue to beat this drum until SOMEBODY in a position to fix this does so. And I hope that they do so before we have another crazed shooter with an agency ID card taking out his frustrations on other civil servants.
Hey, Director-to-be Archuleta. Welcome to OPM. So let's see what kind of leader you are. Don't trust me. The next time you address a group of federal managers, ask for a showing of hands:
1) How many of you think an employee who has received a proposed removal should be left in the workplace with continued access to government resources and personnel?
2) How many of you think that person should be placed on administrative leave and barred from access to the agency, its employees, and its property?
And once you get the answer that I know you will, call up that guy who's responsible for 5 CFR 752.404(3) and ask him why he hasn't changed the regulation. If he can convince you that there are reasons to risk the lives of federal employees unnecessarily, he certainly deserves to keep his job. Because I'm just not smart enough to come up with ANY reasons to unnecessarily risk a repeat of what happened in the Navy Yard.
Sometimes There’s Just No Competition
By Ernest Hadley
It’s a question that came up at EEOC Law Week back in September, but it’s also a question that comes up frequently. The particulars are different, but the basic question doesn’t really change.
“We have a job that we’ve posted a vacancy announcement for and now it’s been identified as a reassignment position for an employee with a disability. The selecting official knows some of the candidates who have already applied and thinks they’re better qualified than that employee. Do we really have to put a less-qualified person in the job?”
Well, first of all, I’m not sure how the selecting official knows that the employee with the disability is less qualified. It may well be that the selecting official knows some of the applicants. That’s not an unusual situation, particularly with a vacancy that’s going to be filled internally. He or she may know that the familiar applicants are well-qualified and would do a fine, maybe even a great job, but being better or lesser qualified is something that can be determined only by actually comparing qualifications.
But, let’s set that question aside for a moment and deal with the underlying question. Is the employee with a disability entitled to the job or can the agency go ahead with a competitive selection. And the answer, as Gary Gilbert and I like to say to nearly all disability-related questions, is “It depends.”
It all boils down to two things. First, whether there is an accommodation in the employee’s present job that would allow him or her to perform the essential functions of that job. If so, then the agency must provide that accommodation unless it’s an undue hardship.
The Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act provides:
Before considering reassignment as a reasonable accommodation, employers should first consider those accommodations that would enable an employee to remain in his/her current position. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship. However, if both the employer and the employee voluntarily agree that transfer is preferable to remaining in the current position with some form of reasonable accommodation, then the employer may transfer the employee.
Next, it boils down to whether the employee is qualified. That is, the employee must meet the basic requirements of the job and be able to perform the essential functions of the reassignment job with or without reasonable accommodation. 29 CFR 1630.2(m). If so, then the employee with a disability is entitled to the job without competition.
The EEOC recently litigated that very point in EEOC v. United Airlines, Inc., 693 F.3d 759 (7th Cir. 2012), cert. denied No. 12-707 (May 28, 2013). United Airlines had adopted a reassignment policy that provided that employees with disabilities who could no longer perform their present positions, could transfer to a job of the same or a lower grade. But, the transfer process was competitive. So, employees with disabilities were not automatically placed into vacancies. They could apply for an unlimited number of positions, were guaranteed an interview if qualified, and given preference if two candidates were equally qualified. But otherwise United could choose the candidate it felt was better qualified. The EEOC filed suit against United alleging a violation of the ADA.
The district court dismissed the case as indeed it had to given the Seventh Circuit’s previous holding in EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000). In that case, the court held that an employer was not required to reassign an employee with a disability as an accommodation if the employer had a better-qualified candidate who could fill the position.
Setting aside some procedural niceties not relevant to the outcome, the Seventh Circuit in the United case reversed an earlier decision upholding the dismissal and overruled its previous decision in Humiston-Keeling. The court was persuaded by the EEOC’s argument that Barnett v. U.S. Airways, Inc., 533 U.S. 391 (2002) required such an outcome.
Here’s what the Seventh Circuit had to say in United:
The Supreme Court first noted [in Barnett] that “[t]he simple fact that an accommodation would provide a ‘preference’—in the sense that it would permit the worker with a disability to violate a rule that others must obey—cannot, in and of itself, automatically show that the accommodation is not ‘reasonable,’” Id. at 398 (emphasis in original). Instead, the Court outlined a two-step, case-specific approach. The ‘plaintiff/employee . . . need only show that an ‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of cases.” Id. at 401. Once the plaintiff has shown that he seeks a reasonable method of accommodation, the burden shifts to the defendant/employer to “show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” Id. at 402. While Barnett’s request for assignment to the mailroom was a “reasonable accommodation” within the meaning of the statute, the violation of a seniority system ‘would not be reasonable in the run of cases.” Id. at 403. An “employer’s showing of violation of the rules of a seniority system is by itself ordinarily sufficient” to demonstrate that the accommodation sought is unreasonable. Id. at 405. However, the Court was careful to point out that it was not creating a per se exception for seniority systems, since “[t]he plaintiff . . . nonetheless remains free to show that special circumstances warrant a finding that, despite the presence of a seniority system (which the ADA may not trump in the run of cases), the requested ‘accommodation’ is ‘reasonable’ on the particular facts.” Id.
In remanding the case, the Court required the district court to conduct the two-step Barnett analysis and apply it to the facts of United.
So, the reassignment, if the employee is qualified, is reasonable on its face and the burden shifts to the agency to demonstrate special circumstances that would make the accommodation an undue hardship. Unless there’s a collective bargaining agreement that would be violated by the noncompetitive promotion, there really are no special circumstances. Even if the CBA did govern the selection, Barnett dictates that an exception to the CBA would have to be granted if the agency grants exceptions to the provision for other reasons, such as a hardship transfer.
One of the things I always stress in our EEO courses is that it’s worth keeping an eye on the Commission’s website for the cases it’s pursuing in private sector litigation. Even if there isn’t a federal sector case on point, there’s a pretty good chance, maybe even excellent, that the Office of Federal Operations will take exactly the same position given the chance. After all, those private sector and federal sector folks over at EEOC all work for the same commissioners.
I Love My Job, But…
By Deborah Hopkins
A few years ago, I developed a notion (well, some people called it a crazy idea) that I wanted to go to law school. I already had a B.A. and an M.S., and I liked what I was doing for work, but I also knew I wanted something more from my career. The thought of going to law school was a far-off dream, and something I wasn’t sure I’d ever have the opportunity or ability to do.
Fast forward to today, where I’m in my second year in the part-time evening program at the University of the District of Columbia – David A. Clarke School of Law. If all goes well, I’ll graduate with my J.D. in May 2016.
I know several people who have found themselves in a similar situation to what I described above: while they are content with their current careers, they also face the conundrum of somehow wanting more. During our recent Employee Relations Week in Washington, DC, I had a conversation with a couple of our students about the logistics of working full time while attending law school at night. While it’s tough, it’s something I personally recommend you attempt, if it’s truly a dream of yours.
Even if you’re not considering law school, you might think about making some kind of career change or a switch to a different area of specialty. The prospect of a big move can be overwhelming, but there are small steps you can take to make the decision process – and the potential transition – easier. These are things I did, or in some cases what I wish I had done, when I made the switch to FELTG and when I started my law school program.
Do your research. Whether it’s an advanced degree or a career change, it’s wise to research what it is you’re thinking about doing. For school, check out the logistics of the program: tuition costs, schedules, class size, specialties, student demographics, faculty, etc. For a new career, research the job market, including growth potential, average pay, required skills and education, etc. The more you know, the better informed you will be to make an educated choice.
Talk to someone – or several someones. Think of this as informational interviewing. Network. Talk to people who are situated in a place where you hope to be some day. For me, this meant talking to federal employment law attorneys to get their perspective on their careers, and how they ended up in this field. Informational interviewing also provided an opportunity to discuss my potential future plans. (Note: this is best utilized when talking with someone who knows you. Asking a complete stranger who doesn’t know you, about his thoughts on your career, might not go over so well.) This step, for me, also involved talking to people who had considered law school but had opted to go a different route – because finding out the reasons why they made their decisions helped me in my own decision-making process.
Listen to the someones. This can be incredibly difficult step to master, particularly when you’re full of questions and ideas. But give the person you’re holding this informational interview with a chance to share her thoughts, and before you immediately respond or react, think about what she told you. Maybe you’ll agree with it – and maybe you won’t – but at least give it some time to percolate before you affirm or reject what she’s saying. Do your best to have a sincere interest in what your contact is saying, even if you figure out that it’s not an approach you agree with.
Don't be too afraid to make the leap. Any kind of change can be intimidating. I know people who have happily stayed in the same job for their entire lives – and that’s fabulous! But this article is specifically geared toward people who are considering a change, want a change, or need a change, and just want a last bit of motivation to put them in a place to make it happen. Trepidation is good, and can be a useful advocate in your decision-making process. But when it’s time to do it, just go for it! I did, and I promise you I haven’t regretted it once.
So, here we are again, or as the great Yogi Berra said, “It’s like déjà vu all over again.” October 1st looms and we await not a budget, but a continuing budget resolution. As of September 11th, the House delayed a vote on a CR that would continue government operations through December 15th. Yep, let’s just kick the can down the road a little farther. Of course, that also assumes the Congress simply doesn’t let the government run out of money to pay its debts sometime in mid-October. It’s become so old-hat that it was hard to find even a mention of it in a newspaper or what now passes for television news until late last week.
Like you, all we can do here at FELTG is go about our business on the hope and, I suppose, assumption that life, the government and your employment will indeed go on uninterrupted. We purposely planned a slower than usual October hoping that we wouldn’t face this reality but knowing prospect was distinctly there. We’ll get to our upcoming events in just a moment but first here’s hoping that I’m not writing a similar newsletter introduction next September. Traditions are a great thing, but this is a tradition that we all, including the American public, can do without.
If you have remaining end-of-FY money to spend, consider one of our quickly approaching opportunities: Employee Relations Week in Washington, DC (September 23 – 27), MSPB & EEOC Hearing Practices Week in Washington, DC, (October 28 – November 1), or our webinar series on Leave Administration. Plus, you can also lock in onsite training and bring one of our instructors to you without incurring any travel expenses for your employees. We’re here for whatever you need, so let us know how we can help make you the best federal employment law practitioner you can be.
On to this edition of our newsletter. Read and enjoy.
A Big Flaw in Our Civil Service System
By William Wiley
You guys are probably so used to me coming out on the side of management that you may not realize that in reality my love is for the civil service system. It takes my breath away when I think about how we've come together as a bunch of hunters and gathers, agreed to live by the rule of law rather than brute strength, and developed a cadre of highly skilled and dedicated individuals who have volunteered to work for the people. Mr. Spock nailed it for me when he said in his dying breath something about the needs of the many being more important than the needs of the few. You civil servants represent the many, and I am impressed at your hard work and honored that on occasion I might contribute a small something that helps you to manage more effectively.
As I am a systems guy, I believe in fairness. And fortunately for me, I conclude after years of practicing in it that the civil service system is inherently fair. However, every now and then I run into something that is just so wrong that I wish that someone smarter than am I would fix it. And the case of one Carol Christopherson is one of them. Christopherson v. Office of Personnel Management, 2013 MSPB 58.
Picture this lady for a moment: deaf in both ears, a significant wrist and shoulder injury, major depression, agoraphobia (that means a fear of everything; I wonder what they call a “fear of MSPB,” maybe Boardaphobia?), post-traumatic stress disorder, and a sleep disorder. Her physician, relying of a medical report developed four years previously, wrote to the agency and said that she was permanently disabled and could never work again.
Upon receiving the doctor's letter, the agency proceeded to remove the employee for medical inability to perform. In my experience, this would be a common path for an experienced agency to take. Hey, the lady's doctor says she can't work, who are we to argue with that? And as the employee agreed with her physician's conclusion, she had no reason to challenge the removal on appeal.
So then Ms Christopherson applies for disability retirement with OPM. And as experienced practitioners know, the fact that she has been removed for medical reasons throws the burden on OPM to prove she IS NOT entitled to a disability retirement (rather than her having to prove she IS entitled). So guess what? When OPM denied her application for disability retirement for lack of "objective medical evidence," the Board agreed. More specifically, even though she submitted the 2011 letter from her doctor that concluded she is medically disabled from ever working again, she did not submit the 2007 medical report on which that conclusion was based. Perhaps the agency had this report in its files, but did not submit it because of EEOC's guidance on keeping medical records out of adverse action files. Perhaps it doesn't exist. Perhaps the employee just didn't know she would need it because the agency might not have asked for it. Sadly, we do not know why the 2007 report is not in the file.
But here's what we do know. This lady, who is dealing with a whole lot of challenges (accepting that her claims of medical infirmity are true), has been fired from her job for medical reasons, yet has been denied a disability retirement that she applied for based on those same medical reasons. I never claim to be the smartest person in any discussion. But I can say to you without reservation: This just ain't right.
Sometimes we take sides in this business. If we work the appellants' bar we may be pro-employee. If we are died-in-the-wool agency practitioners, we may be pro-agency. But I don't really care on which side of the toast you put your butter. You have just GOT to agree with me that there's something systematically wrong with this picture.
Somebody. Somewhere. Please. Fix this.
[Editor’s Note: I always knew Bill was just an old softy.]
An Opportunity Blown by OPM
By Ernest Hadley
For a moment, I got really excited. OPM had issued a notice of proposed rulemaking on the nondiscrimination provisions of its regulations. (Of course, this gives you some idea of the pathetic existence that Bill and I lead when a notice of proposed rulemaking creates excitement.) OPM, in the notice, acknowledged that the nondiscrimination provisions of it regulations are “inconsistently worded and most have not been updated to reflect recent legal developments . . .”
I thought, finally, OPM has decided to do something about its outdated and arcane regulations that fly in the face of the Americans with Disabilities Act and, along with MSPB interpretation of those regulations, create havoc for agency and employee practitioners alike.
Gee, was I disappointed. What we have instead is a handful of pabulum unlikely to have any impact in the real world. Yep, now GINA—the Genetic Information Nondiscrimination Act—is included in the regulations. (How many GINA cases have you had recently?) And, yes, OPM regulations grounded in Title VII now include gender identity as a form of sex discrimination, but curiously relegate discrimination based on sexual orientation as a practice prohibited only by Title V of the U.S. code.
Why the disappointment? Because left unscathed in all this are the OPM regulations on medical determinations that clearly authorize, if not encourage, agencies to collect medical information in contravention of the ADA. And, conversely, throw up somewhat of a roadblock to agencies getting the appropriate medical documentation to make employment decisions.
So, let’s start at the beginning. The ADA, made applicable to the federal government by a 1992 amendment to the Rehabilitation Act, places restrictions on an employer’s collection of medical information. Specifically, medical information on employees can be collected only if it is job-related and consistent with business necessity. See 42 USC 12112(d)(4)(A). The EEOC gives a rather restrictive definition to what is job-related and consistent with business necessity. Particularly with regard to reasonable accommodation requests, under the ADA Amendments Act with its lowered threshold for what constitutes a substantial limitation of a major life activity, agencies are severely restricted as to what they can request in the way of medical information. In many cases, the permissible medical information will include only a diagnosis, prognosis and a description of the employee’s functional limitation in the workplace. And, much, if not most, of the information on the employee’s functional limitations isn’t medical information. It can come directly from the employee.
Now, students, turn in your textbooks to 5 CFR Part 339. That’s right; these are the OPM regulations on medical qualification determinations. And, we find, that section 339.101 “applies to all applicants for and employees in competitive service positions; and to excepted service employees when medical issues arise in connection with an OPM regulation which governs a particular personnel decision, for example, removal of a preference eligible employee in the excepted service under part 752.” Presumably, deciding on a request for accommodation is a “particular personnel decision.”
Here’s where it starts to get really good. Section 339.104 defines medical documentation as a statement from a licensed physician or other appropriate practitioner—so far, so good—but then goes on to say that an “acceptable diagnosis” can include a veritable encyclopedia of medical tests and examination results. What are these things? Well, just a few are:
(a) The history of the medical conditions, including references to findings from previous examinations, treatment, and responses to treatment;
(b) Clinical findings from the most recent medical evaluation, including any of the following which have been obtained: Findings of physical examination; results of laboratory tests; X- rays; EKG’s and other special evaluations or diagnostic procedures; and, in the case of psychiatric evaluation of psychological assessment, the findings of a mental status examination and the results of psychological tests, if appropriate;
(c) Diagnosis, including the current clinical status;
(d) Prognosis, including plans for future treatment and an estimate of the expected date of full or partial recovery; . . .
Just how many of those do you think you can justify asking for in support a request for accommodation given the ADAAA’s admonition that usually the determination of whether an individual is substantially limited will not require scientific or medical evidence? See 29 CFR 1630.2(j)(1)(v). How about (c) and (d), though in some cases asking for the future plan of treatment may be stretching it?
So, follow the OPM regulation and chances are that you’ve just walked your agency right into an ADA violation. Want to know how outdated the OPM regulation is? Section 339.103 requires that actions under Part 339 be consistent with 29 CFR 1613.701. et seq. For you youngsters out there, 29 CFR Part 1613 was the EEOC’s regulations before there was Part 1614. Part 1613 was abolished in 1992—the same year that Congress made the ADA provisions part of the Rehabilitation Act.
It gets better, though. The ADA permits employers to conduct medical examinations if they are job-related and consistent with business necessity. But, under OPM regulations, sections 339.301 (b)-(d) permit an agency to order a medical examination in only three limited circumstances: 1) the position the employee occupies or has applied for has medical standards or physical requirements or is part of an established medical evaluation program; 2) the employee has applied for or is receiving continuation of pay or compensation for an work-related injury or disease; and 3) the employee is released from his or her competitive level in a RIF and the position to which the employee has reassignment rights has medical standards or physical requirements different from the employee’s current position. So, even though it would be job-related and consistent with business necessity for an agency under the ADA to conduct a medical exam to determine if an employee poses a danger to himself or herself or someone else, OPM regulations say it can’t be done unless one of those three conditions is met.
That regulation caused the MSPB, in Doe v. Pension Benefit Guaranty Corporation, 117 MSPR 579 (2012), to find that the agency lacked the authority to order a fitness-for-duty exam of an appellant who had exhibited signs of delusional behavior to determine if she was a threat to herself or someone else. The appellant in Doe simply didn’t fall into any of the categories in the OPM regulation. Given the facts in Doe, the Commission would have had little difficulty in finding the examination was job-related and consistent with business necessity under the ADA. See, e.g., Sanders v. National Security Agency, EEOC Appeal No. 0120073987 (2010)(agency justified in ordering psychiatric evaluation where security investigation revealed evidence of paranoid ideation).
But wait. It gets better still. Section 339.301(e)(1) permits a psychiatric evaluation only if the agency first conducts a general medical examination. Of course, if the agency has reasonable cause to believe that a psychiatric condition is impairing an employee’s ability to function in the workplace, it will have a hard time justifying a general medical examination as being job-related and consistent with business necessity under the ADA. See, e.g. Enforcement Guidance: Disability-Related Inquiries And Medical Examinations Of Employees Under The Americans With Disabilities Act (ADA) (“If an employer has a reasonable belief that an employee's present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, the employer may make disability-related inquiries or require the employee to submit to a medical examination. Any inquiries or examination, however, must be limited in scope to what is needed to make an assessment of the employee's ability to work. Usually, inquiries or examinations related to the specific medical condition for which the employee took leave will be all that is warranted. The employer may not use the employee's leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination.”) (emphasis in original).
So, unless the agency has reasonable cause to believe that apparent psychiatric symptoms are the result of an underlying physical condition, conducting a general medical exam prior to a psychiatric evaluation would not be job-related and consistent with business necessity.
Where does this leave agencies? Well, let’s see. Assume the agency has reasonable cause to believe an employee does not have the ability to safely perform without being a danger to himself or someone else, and orders a general medical exam as a prerequisite to a psychiatric evaluation. The psychiatric evaluation gives the employee a clean bill of health so the agency takes no further action. The employee files an EEO complaint alleging a violation of the ADA. The employee prevails because the general medical exam is not job-related and consistent with business necessity.
Change the facts a bit. Now, the agency orders only the psychiatric evaluation and, based on the results, removes the employee. The employee appeals to the MSPB and the Board reverses because the agency did not comply with OPM regulations by first conducting a general medical exam.
We can even complicate things a little more by having our hypothetical employee file a petition for review of the Board’s decision with the EEOC. Theoretically, the following outcome is possible. The EEOC upholds the Board’s decision on the removal insofar as it’s based on the Board’s interpretation of civil service law and the Board has primary jurisdiction in that area. Ignacio v. U.S. Postal Service, EEOC Petition No. 03840005 (Special Panel No. 1, 1986). But, the Commission finds that the general medical exam violated the ADA because it was not job-related and consistent with business necessity and OPM lacks the authority to grant a regulatory exception to the ADA. If the agency is lucky, the EEOC does not reverse the removal because the agency didn’t rely on any information from the general medical exam in removing the employee. If the agency is not so lucky and it did rely on such information, the EEOC reverses the removal because it’s based on an exam that is impermissible under the ADA.
Oh, what fun. Maybe that’s why OPM passed up a chance to resolve the conflicts between its regulations and the ADA. Looking into the FELTG crystal ball, which is really on old Eight Ball from Bill’s childhood, I see a Special Panel forming on the horizon.
And Another Delayed, But . . .
By Ernest Hadley
Back in January 2005, OPM issued a notice of proposed regulations to amend 5 CFR Part 550, subpart J, on Compensatory Time Off for Religious Purposes. The agency took comment until March 7, 2005. And then, nothing happened. That is until August 30, 2013 when finally OPM issued another notice of proposed rulemaking to amend the compensatory time for religious purposes regulations.
There’s no real explanation of why it took more than eight years to evaluate the comments received in 2005 and reissue the NPRM. OPM does note that in October 2012, the General Accountability Office issued a report on “Religious Compensatory Time: Office of Personnel Management Action Needed to Clarify Policies for Agencies.” One has to wonder how many GAO folks it took to figure that one out.
At any rate, the comment period now ends on October 29, 2013. Significantly, the new proposed regulations would increase the number of pay periods to repay compensatory time for religious purposes advanced to an employee from the three originally proposed in 2005 to 26 pay periods and also require the employee to provide more specific information about the request for religious time off.
While time off for religious observances can be a reasonable accommodation under Title VII, the OPM proposed regulations are based on 5 USC 5550a, which gives OPM the authority to issue regulations “providing for work schedules under which an employee whose personal religious beliefs require the abstention from work during certain periods of time, may elect to engage in overtime work for time lost for meeting those religious requirements.” The employee can then be granted religious compensatory time off for observances in lieu of overtime pay.
The current regulations, first adopted in 1978 and amended last in 1986, are cursory in nature and provide agencies with little guidance. The new regulations would apply to employees in executive agencies who have a scheduled tour of duty, though the FAA and TSA are exempt by statute for the compensatory time provisions.
Part of the impetus for increasing the originally proposed three pay periods to pay back advanced religious compensatory time to 26 pay periods came from comments received in 2005 noting that, “for example, that there is cluster of Jewish religious holidays in the fall during which an employee may nee to abstain from work for at least 7 days during a 1-month period.”
Explaining the proposed expansion, OPM states:
Paragraph (c) of this section states that the agency must provide the employee with an opportunity to earn religious compensatory time off before the end of the 26th pay period following the use of the time off. However, the specific timing of when an employee is allowed to earn religious compensatory time off is at the agency's discretion. This is consistent with guidance in former Federal Personnel Manual Letter 550-71, September 29, 1978, which stated that “[A]n agency is expected to accommodate to an employee's request to work compensatory overtime. If no productive overtime is available to be worked by the employee at such time as he or she may initially request, alternative times should be arranged for the performance of the compensatory overtime work.” A key difference between using and earning religious compensatory time off is that using religious compensatory time off is tied to a specific religious observance on a fixed date, whereas greater flexibility exists regarding when religious compensatory time off may be earned. However, the agency must provide an opportunity for the employee to earn religious compensatory time off before the end of 26th pay period after it was used. Agencies have latitude in scheduling exactly when overtime hours will be worked to earn religious compensatory time off.
The proposed regulations also would make clear what agencies can request in support of a request for religious compensatory time. And, here’s an area where agencies need to tread carefully as we’ve been talking about at EEOC Law Week this week.
When dealing with religion, agencies need not only to heed Title VII and the religious compensatory time statute and regulations, but the First Amendment of the Constitution. That means that agencies need to tread lightly when inquiring into the bona fides of an employee’s religious beliefs. The proposed regulations would allow agencies to require employees requesting compensatory religious time to provide “(1) The name and/or description of the religious observance for which the employee's absence from work is required based on the employee's personal religious beliefs; (2) The date(s) and time(s) the employee plans to be absent to participate in the religious observances identified in paragraph (b)(1) of this section; and (3) The date(s) and time(s) the employee plans to perform overtime work to earn religious compensatory time off to make up for the absence.”
The EEOC’s Compliance Manual provides that an “employer should ‘ordinarily assume’ that the employee’s religious beliefs are sincerely held unless an employer has an objective basis for questioning either the religious nature or the sincerity of particular belief.” Factors that might indicate an employee’s professed beliefs are not sincere include whether employee has behaved in a manner markedly inconsistent with the professed belief; whether accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. EEOC Compliance Manual, Section 12-I, A-2
Now, let’s just hope we don’t have to wait another eight years for OPM to finalize the regulations.
What Do Hearing Practices and Ironman Have in Common?
By Deborah Hopkins
A number of our readers have sent emails asking how I fared during my recent Ironman in Sweden. I appreciate the inquiries, and I’m happy to report that it was a phenomenal experience. Despite some unanticipated waves in the Baltic Sea, and brutal headwinds and crosswinds on the bike, I had a fantastic race and managed to take 83 minutes off my previous Ironman time. And yes, while 12 hours of swim/bike/run makes for a long day, I had a lot of fun out there!
Ready for the segue? There are three principles I utilized during Ironman, that also apply to our field of federal sector employment law; in particular, these principles involve hearing practices before the MSPB, EEOC, FLRA or in arbitration. They were taught to me courtesy of Ernie Hadley, and we’ll go in depth during MSPB & EEOC Hearing Practices Week in Washington, DC, October 28 – November 1. But, I’m happy to give a brief overview and share them here for your benefit. The Three Ls are Look, Listen, and Learn. I’ll share a professional lesson for each, and then, because it’s one of my favorite things to write about, I’ll tell you how the principle works in Ironman competition as well.
Professional lesson: During an interview, direct exam or cross-exam, look at the witness or the AJ. Don’t bury your head in your notes, worrying about what you’ll say next. At this point in the process, awareness of your surroundings is more important than reviewing your litigation plan. Remember, you’ve already prepared the case. You know the facts, and you know the argument you’d like to make, so now is the time to observe the proceedings, and to get cues from the nonverbal behaviors exhibited by those in the room. Is the witness fidgeting, or sweating? Is the judge nodding, or audibly sighing? These cues can guide the direction of the next phase in the hearing, so tune in.
Ironman lesson: Swimming, biking and running with your eyes closed is generally not a good idea. During a race it’s important to stay aware of your surroundings. If you lose sight, you might over-swim the course, ride directly into a pothole, or miss a turn on the run course. You might miss locking in on your fellow age group competitors (standard practice is to body mark your age on your calf, so other in the race know who they’re competing against). Look around to stay on course – and also to observe and savor the moment.
Professional lesson: As a supplement to the Look factor, listen to what’s being said during the hearing. While also watching the nonverbal cues, listen to the words being used and the ways in which they’re spoken. It’s nearly impossible to listen well while simultaneously planning what you’ll say next. Again, trust that you’ve prepared your case, and stay alert to new things you might learn based on what the witness or the AJ says.
Ironman lesson: Listen to your body. I had a race plan that had to be adapted because of the windy conditions. I had to alter my pace on the bike, simply because if I’d tried to stick to the original pace my heart rate would have gone too high. That level of effort would have been impossible to sustain, if I’d forced my body to ride faster than it should have given the conditions. By listening to my body, I was able to ride smart so I would feel strong on the run. Had I ignored the signals (namely, the redline heart rate), my run would have suffered and the race would have been much more painful – and probably slower.
Professional lesson: Learn from what you hear, and tailor your responses based on this information. In an ideal world, you’ll know exactly what every witness is going to say at hearing – but this isn't true at deposition. Besides, rarely does the plan go exactly as you hope, so keep an open mind to see what you learn. You might become privy to information that makes you realize settlement is the best option – or you might learn something that will strengthen your case for when it goes to hearing. You might learn how to present to a particular judge, or what organizational method works best for your hearing notebook. Throughout the proceedings, there are always lessons to learn.
Ironman lesson: Experience is the ultimate teacher in endurance sports. This time around, my Ironman nutrition plan was much better because I learned from the mistakes I made during my first Ironman, and adapted my plans accordingly. Because of that, I had a much more successful and enjoyable race experience.
Thanks for humoring me – and don’t forget to join Bill, Ernie and me at the end of October, for Hearing Practices Week in Washington, DC. We look forward to it! [Wiley Note: And you should see the nutrition plan I’m putting together for THAT week. Hey Deb; am I supposed to capitalize “Margarita”?]
Sometimes I wonder what I’m a gonna do,
‘cause there ain’t no cure for the summer time blues.
Eddie Cochran and Jerry Capehart
Ok, so there are still a few weeks “officially” left in summer, but everyone knows it really ends with Labor Day weekend. And for those of us older than the hero of Summertime Blues, we know that the real blues isn’t summer itself, but the end of summer. All of us here at FELTG hope that you’ve had a good summer and now are ready for an invigorating fall.
So, while you’re still waiting for the leaves to change and trying to catch those last few warm rays, here’s a few things that will hopefully help ameliorate, if not cure, your summertime blues. If you were thinking about registering for MSPB Law Week, think the spring. We're booked for the September session, so get your seat for the next offering on March 3-7, 2014 because this is a course that fills up fast. But, we do still have openings for EEOC Law Week, September 16-20, and for Employee Relations Week, September 23-27 with Barbara Haga. Or, for the litigators in our midst, we have the ever-popular MSPB & EEOC Hearing Practices Week October 28 – November 1. Plus, we've got lots of good webinars coming up that you can check out here.
Read and enjoy.
Reflections on a 50th and 60th Anniversary
By Ernest Hadley
It was the end of a long day. It started out on the east coast. I rose early. Not exactly my favorite thing to do, but I knew I might not get another chance to see my son Luke before he boarded a plane for a semester in Ireland. Then, it was time to finish packing the truck to get my youngest daughter Mairead off to her freshman year at Emerson College. Late in the afternoon, I grabbed my own suitcase and headed off to Logan for an evening flight to Denver for the 2013 EEOC EXCEL Conference.
I checked in only to find that the room I’d been given was already occupied. At that point, I didn’t care so much, but figured the current occupant might. So, back down to check-in. There was a line, but I managed to get the attention to a hotel clerk and, finally, a room with no other occupants. I hung up my suit and went down to the bar for a beer. It seemed like I had earned one. Perhaps more than one, but I was far too tired.
The bartender asked what I was doing in Denver and I told her I was there to speak at a conference. She wanted to know what I was speaking about and I told her employment discrimination law. Her reply nearly knocked me off my barstool and not because of any quantity of alcohol I’d consumed.
“Oh, is there really still a need for that sort of thing?” No, it wasn’t a rant from some Neanderthal about how our civil rights laws give an unfair advantage to unqualified minorities. It was just a simple, if somewhat naïve question. Maybe one of these days, the answer will be “no.” Unfortunately, that day isn’t today, though.
I was born in 1953—a year when it was still legal to send white kids to one school and kids of color to another. As I stare age 60 in the face, it’s easy to look around and note the progress, and certainly that’s something we should all do from time to time if for no other reason than to assure ourselves that this is not an exercise in futility. I’ve lived to see passage of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Americans with Disabilities Act, the 1991 Civil Rights Act, the Genetic Information Nondiscrimination Act, and the Americans with Disabilities Act Amendments Act. I’ve lived to see the growing movement to include gays, lesbians, bisexuals and transgender individuals within the scope of our laws that prohibit discrimination. That’s some 60 years.
Last week, as a nation, we paused to commemorate the 50th anniversary of a speech that electrified many of us alive at the time and continues to inspire those who were not yet born. Dreams are a great thing. Without dreams we have nothing to aspire to. But dreams remain just that without actions that accompany them.
As we pause to congratulate ourselves on the progress made, let’s use that progress as the inspiration to tackle what remains to be done. I suspect that I won’t be around to see the next 60 years, or even 50 for that matter. But I have confidence that maybe in that future someone sitting on a barstool in Denver can give a different answer to a simple question.
The Hidden Civil Rights Movement
By Ernest Hadley
“Let this shameful wall of exclusion come tumbling down.” With those words, President George H.W. Bush signed into law the Americans with Disabilities Act. The year was 1990 and the Act, authored by Senator Tom Harkins, had the long title of “An Act to establish a clear and comprehensive prohibition of discrimination on the basis of disability.” But as with other civil rights acts, the ADA didn’t come out of nowhere. Like the 1964 Civil Rights Act, it came as the result of a long struggle. One that today is perhaps lost in our day-to-day litigation of disability discrimination cases.
As a fan of PBS, I’m not sure how I missed this one. But, I walked into a plenary session last week at the EEOC’s EXCEL Conference that was titled, quite simply, “The Rehabilitation Act—40th Anniversary Keynote.” I was expecting some speech from an EEOC luminary. Instead, I, along with a roomful of other people, were treated to a film that appeared on Independent Lens—“Lives Worth Living.” Made in 2011 by filmmaker Eric Nuedel, “Lives Worth Living” chronicles the struggle for individuals with disabilities to be recognized as full citizens worthy not of our sympathy but our admiration for the obstacles they overcame to gain that recognition, as well the obstacles they continue to overcome everyday.
As the child of an amputee who didn't live to see even a crack in the wall, to say nothing of its tumbling down, and a scholar, and I use that term loosely, of disability discrimination law, I found it somewhat embarrassing how little I knew of the events that led up to the passage of the Architectural Barriers Act of 1968, the Rehabilitation Act of 1973 and, ultimately, the ADA. Maybe, just maybe, if some of the folks who constantly grumble—and, yes, I know you’re out there because I hear it on a regular basis—about the albatross of reasonable accommodation saw this film, they’d grumble just a little less.
The film traces our history of treating those with disabilities as, at best, second-class citizens. The turning point was the return of those whom Tom Brokaw has described as the Greatest Generation. The veterans who returned from World War II wounded and maimed weren’t second-class citizens. They were heroes and simply relegating them to the margins of society wasn’t an option. But just as with the Emancipation Proclamation, the effort to rehabilitate and reintegrate those veterans wasn’t an end point but merely a first step.
“All I’m asking is access to the buildings my tax dollars help pay for,” explained one activist describing the demonstrations that led to the Architectural Barrier Act of 1968. Today it seems almost as inconceivable as “White” and “Colored” restrooms that we once built federal buildings that excluded millions of Americans. Making buildings accessible was just a small step, if you’ll pardon the pun.
The Rehabilitation Act was just another modest step, excluding as it did the private sector and aimed only at the modest goal of banning discrimination on the basis of a disability in the federal government and for recipients of federal funding. Still, President Nixon vetoed the Rehabilitation Act not once, but twice before signing it into law on September 26, 1973.
Some three and a half years passed and the Department of Health, Education and Welfare still hadn’t issued final Rehabilitation Act regulations. It took, in part, more than a hundred individuals with disabilities occupying the DHEW building in San Francisco for 28 days, along with several other similar occupations, to force then Secretary Joseph Califano to sign the regulations.
But the struggle was far from over. Thirteen years later on March 13, 1990 with the ADA stalled in Congress, scores of mobility-impaired protesters crawled up the steps to the Capital with most of the media attention focused on 8-year-old Jennifer Keelan of Denver, who used her knees and elbows to get to the top. Finally, on July 26, 1990, President George H.W. Bush signed the ADA into law with the words that started this article.
Of course the struggle didn’t end there. In 1999 and again in 2002, the Supreme Court issued a series of decisions dismantling the ADA and doing what doctors couldn’t do—curing millions of Americans of their disabilities by excluding them from ADA coverage. In an act of symmetry, it was President George W. Bush who signed the Americans with Disabilities Act Amendments Act into law, restoring the original intent of Congress.
And that’s not to say that the struggle is over. It isn’t. So, just as we all paused a few days ago to commemorate the 50th anniversary of Martin Luther King’s “I Have a Dream” speech, perhaps it’s worth pausing as well on September 26th to mark the 40th anniversary of the signing of the Rehabilitation Act and to remember the struggles of those who fought for the simple right to be included.
And let’s not forget it come September 27th. The next time you’re faced deciding if someone is entitled to reasonable accommodation or defending an agency’s decision not to accommodate, remember that this isn’t about giving special or preferential treatment to those who can’t do the job. It’s about making sure that those who are qualified get the same chances as the rest of us.
After all, isn’t everyone entitled to a life worth living?
EEOC Finds Discrimination Based on Perceived Sexual Orientation
By Ernest Hadley
The EEOC has issued a decision finding that a federal agent with the Department of Energy was subjected to a hostile environment based on his perceived sexual orientation. Noting that the complainant did not specifically identify his sexual orientation in his complaint, the Commission’s Office of Federal Operations, in Couch v. Secretary of Energy, EEOC Appeal No. 0120131136 (August 13 2013), found the complainant was subjected to anti-gay slurs and increased work scrutiny and that his supervisors, despite several complaints, failed to take virtually any corrective action designed to stop the harassment.
In Couch, throughout 2010 and into mid-2011, the complainant was repeatedly called “fag,” “faggot,” and “gay,” and coworkers spread rumors that he was gay. He was told that he was not welcome in the organization and that he would be fired due to his sexual orientation. After complaining to a supervisor, he was told that he was “unusual” and not like other agents. The supervisor told the coworkers to stay away from the complainant because he was “taking notes” and the coworkers also began working “rat” into the epithets directed at the complainant.
Multiple supervisors failed to address the situation with one telling the complainant that “[w]e take care of our own, not you.” The same supervisor also told coworkers that if they were calling the complainant names, “you need to cut it out because [Complainant] has already filed an EEO on several guys.”
In addition to increased work scrutiny and public criticism of his work, during a firearms training, the complainant found the words “RAT FAG” and “God Loves Rat Fags To[o]” on his gun bag. (Parenthetically, one hopes these agents are better at shooting a gun than they are at spelling.) On another occasion, while on travel status, the complainant found sexually explicit gay and lesbian magazines in the fleet of rental cars being used by the agents.
Oh, there’s plenty more and if you want all the details they’re in the decision. Suffice it to say that the complainant was subjected to an outrageous barrage of conduct over an extended period of time and some nine different supervisors were aware of it.
In a final agency decision, the Department of Energy found that the complainant had failed to establish a prima facie case of discrimination based on sex, perceived sexual orientation, age, national origin and reprisal. (Oh, really? Now there’s a fair and unbiased decision, not to mention a persuasive argument for why agencies should not be allowed to investigate and decide complaints of discrimination.) The Agency did find that the complainant had been subject to per se retaliation for comments one supervisor made asking if the complainant routinely filed EEO complaints and suggesting that the Agency look into whether there was a pattern of the complainant filing EEO complaints. (Hey, with facts like this, you have to admit to something, right?)
The Commission, citing Baker v. Social Security Administration, EEOC Appeal No. 0120110008 (January 11, 2013) found:
Title VII does not explicitly include sexual orientation as a basis for protection under the law. Nevertheless, the law's broad prohibition of discrimination "on the basis of ... sex" will offer coverage to gay individuals in certain circumstances. Baker, supra.
As the Supreme Court has recognized, Title VII's prohibition on the basis of sex includes discrimination on the basis of "gender." Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). This includes discrimination because an individual fails to conform to gender-based expectations, stereotypical or otherwise. Id. Although we are not bound by federal circuit court precedent in Title VII for purposes of our adjudication of federal sector complaints, we note that, since Price Waterhouse, every court of appeals has recognized that disparate treatment for failing to conform to gender-based expectations is sex discrimination and has also concluded that this principle applies with equal force in cases involving plaintiffs who are gay, bisexual, heterosexual, or transgender. See Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009) (harassment of a gay man targeting his gender-nonconforming behavior and appearance is sex harassment); Miller v. City of New York, 177 Fed. App'x. 195 (2d Cir. 2006) (harassment based on heterosexual male employee's failure to conform to his employer's stereotypes for men can state claim of sex discrimination); Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (Employees who face adverse employment actions as a result of their employer's animus toward their exhibition of behavior considered to be stereotypically inappropriate for their gender may have a claim under Title VII); Smith v. City of Salem, Ohio, 378 F.3d 566, 572 (6th Cir. 2004) (allegation that plaintiff was harassed for "not being masculine enough" stated a claim of discrimination on the bases of sex stereotyping); Doe by Doe v. City of Belleville, Ill., 119 F.3d 563, 581 (7th Cir. 1997) vacated on other grounds by 523 U.S. 1001 (1998) (A man who is harassed by his male coworkers because he exhibits his masculinity in a way that does not meet his coworkers' idea of how men are to behave is harassed because of his sex).
The Commission has also recognized the viability of such sex stereotyping claims. See Macy, supra; Veretto v. United States Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011); Baker, supra.
Significantly, the Commission also noted that:
[T]he words "fag" and "faggot" have been historically used in the United States as a highly offensive, insulting, and degrading sex-based epithet against gay men. Additionally, the words "fag" and "faggot" are offensive, insulting, and degrading sex-based epithets historically used when a person is displaying their belief that a male is not as masculine or as manly as they are. See, e.g., Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 870, 875 (9th Cir. 2001) (concluding that verbal abuse, including the use of the epithet "faggot," occurred because of sex). The Commission has previously taken this position in a brief docketed with the U.S. Court of Appeals for the Fifth Circuit on December 12, 2011, where it stated that words such as "faggot" are degrading sex-based epithets. EEOC Appellate Brief in EEOC v. Boh Brothers Construction Company, L.L.C., No. 11-30770, at 5 (5th Cir. Dec. 12, 2011).
From there, it wasn’t difficult for the Commission to find that the complainant had been subjected to a hostile environment based on his perceived sexual orientation, as well as in retaliation for protected activity.
The Commission found that the agency was liable for both coworker and supervisory harassment explaining:
[A]ll of the supervisors failed to take appropriate action. Many times the supervisors did nothing, and other times the actions that were taken were insignificant and were not designed to ensure that the harassment would stop. As just one example, after the sexually explicit gay and lesbian magazines were left in the vehicles, the responsible agents were only given a verbal counseling and were warned to be careful around Complainant because he filed EEO complaints. ROI, Exhibit F-10. As a result, we find that the Agency is liable for the co-worker harassment.
With regard to the harassment by supervisors, we find that the Agency is vicariously liable for the harassment. The Agency did not establish an affirmative defense, as it did not establish that it exercised reasonable care to prevent and correct the harassing behavior, nor did it establish that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities. As a result, the Agency is liable for the supervisor harassment.
Oh yes, and that 24 hours of training ordered for all management officials and employees at the facility, I think I know a few folks who could help you out with that.
Kicking *** and Taking Names
By Ernest Hadley
A little research, and that does accurately describe my effort, reveals uncertainty about the derivation of the phrase that titles this article. Maybe it was the military; maybe it was law enforcement. Whatever the derivation though, the EEOC would do well to adopt it, or maybe a more sanitized variation like “kicking butt and taking names.”
If you just read the article above, EEOC Finds Discrimination Based on Perceived Sexual Orientation, (and if you didn’t, why not?), I can only assume that like me you were repelled at the treatment of the Complainant in Couch v. Secretary of Energy, EEOC Appeal No. 0120131136 (August 13, 2013). The Complainant in that case, who is clearly identified for the public record, was repeatedly called a “fag,” “faggot,” and “gay,” as well as being subjected to other humiliating treatment over an 18-month period.
So, what about the nearly 20 coworkers and supervisors who engaged in this conduct? They’re all referred to as CW1, CW2, S1, S2, etc. The Commission even drops a footnote to let us know that “CW” refers to coworker and “S” refers to supervisor. (Thanks. I would have never figured that one out for myself.)
Why aren’t these miscreants named for the public record? Why does the EEOC insist on protecting the guilty?
Oh, they’re public employees, you say, and are entitled to due process of law? Sorry, the Fifth Amendment only guarantees that the government can’t take life, liberty or property without due process of law. It doesn’t say anything about publicizing the names of those who choose to violate the law.
I don’t think you’ll find much solace in the Privacy Act either. That’s because the Freedom of Information Act, 5 USC 552(A)(2)(a), provides that agencies “shall make available for public inspection and copying . . . final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases.” There is an exemption, under section (b)(6) for “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” But a Commission decision isn’t a personnel or medical file or any similar file. It’s a published decision.
The Commission certainly did not think it was a “clearly unwarranted invasion of personal privacy” to publish the Complainant’s name. So, why should we know who the victim is but not the perpetrators?
Publish the names, I say. Better yet, set up a page on the Commission’s website, Federal Employees Wall of Shame, and publish the names of offenders for all to see.
And maybe, just maybe, there are a few folks out there who might think twice about opening their mouths. That’s a silence we all could live with.
Back to School Rules to Live By (Or, at Least to Try)
By Deborah Hopkins
Summer is officially over. Many of you are just returning to the office after the vacations, staycations, and conferences that usually comprise the month of August.
I’m back in DC, fresh off nearly two weeks in Scandinavia (during which I completed my second Ironman triathlon) and a week in Denver at the EEOC’s EXCEL Conference. School has started again, and FELTG commences its fall programs next Monday with the sold-out MSPB Law Week, followed immediately by EEOC Law Week and Employee Relations Week. Cue the crazy schedule. Oh yes, I nearly forgot to mention that I’m also training for the Marine Corps Marathon, which is in a mere seven weeks. Whew, I’m already (or should I say, still) exhausted.
You’re probably getting back into the daily grind as well, so I thought I’d put together a few “back to school/back to work” tips that I’ve been relying on, to help facilitate the shift from vacation to work mode, and to make the transition bearable, and perhaps even enjoyable.
Celebrate your achievements and remember the good times. When all the summer fun ends, it’s normal to experience a little bit of the post-summer blues. Keep the feeling going by getting together with friends to celebrate achievements that were met. (As an example, a group of my triathlon club friends, many of whom also completed Ironman triathlons this summer, is planning a big post-race celebration in a few weeks. We’ll share stories and pictures and probably relive every moment of every race. We triathletes are a strange breed.) When you’re feeling a bit down that the fun is over, revisit that vacation spot by recreating a menu from the location you visited, or by gathering your kids together for a Disney movie night. Get your photos printed out and put them in an album. Journal. Write a blog about you adventures. Scrapbook.
Review where you left off. If you’ve been out of the office – or the classroom – for a bit, go through the last several emails in your inbox, including the ones you’ve already read. This review will provide a good refresher of where things were when you left. Also, listen to saved voicemails and check with the colleagues who covered while you were on leave, to get a general idea of where things stand. This will make the transition easier, and ensure that you’re able to be productive soon after your return.
Set new goals. It can be a bit of a letdown to have the major events of the summer become a figment of the past. So find something new to aim for. Whether it’s the launch of a new project, getting training on a new skill or system, or meeting new people in the office, having something to look forward to will help you feel good about what lies ahead. Sure, you can also plan that next vacation or race (for me it’s Ironman Mont Tremblant next August), but it’s also good motivation to set goals and plan for things in the professional realm.
Shake things up. There’s no need to reinvent the wheel, but sometimes there are better ways to do things. Use this fall to test out new ideas or methods on how to approach work projects or situations. Switch around minor roles and responsibilities in the office. Try something new. Speak up in a meeting. Take a class on something you’ve always wanted to learn – pastry, Mandarin, or salsa dancing, for example.
Take care of yourself. If you’ve ever read anything I’ve written, I’m sure you knew I couldn’t complete an article without mention of this all-important topic. Don’t underestimate the importance of treating your body and mind well. Habits take a long time to create, but they’re broken in a much shorter time. If your sleep, nutrition and exercise schedule has suffered in the past weeks, get back on track today. Not Monday – today.
These are just a few ideas that are helping me make the transition from summer to fall. All of us here at FELTG wish you good luck and productive days as we enter the end of the fiscal year and the last segment of 2013. And, we hope to see you in one of our classes soon!
No Need to Isolate the Deciding Official
By William Wiley
I hope to goodness that most every practitioner knows by now about the Stone/Ward pitfall. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1990; Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 (Fed. Cir. 2011). The fifth element in every removal case is that the agency must provide "due process" to the employee prior to firing him. Specifically, this means that the employee is entitled to 1) specific notice of the charges, 2) an opportunity to respond to the charges and the evidence, and 3) an unbiased decision from a management "deciding official." Both Stone and Ward teach us that due process is violated if the deciding official relies on evidence not given to the employee prior to making his or her decision. And a due process violation is just plain horrible as it is a Constitutional violation and thereby an automatic reversal of the removal (not subject to the harmful error analysis).
Several months ago, I got a call from a deciding official who was worried sick. An employee a couple of steps below her in the organization had been threatening coworkers with physical harm. She was concerned about the safety of her employees as well as the progress of any corrective action by the first level supervisor. However, when she inquired as to what was happening, her HR advisors told her she could not know ANYTHING about the situation, apparently out of fear of a possible Stone/Ward misstep.
We've discussed situations like this before in our FELTG newsletter, and our advice has been straightforward; it's perfectly fine to let a deciding official know what's going on relative to some potential discipline as long as the deciding official can say honestly that when she made her decision, she relied on only what was in the proposal letter and the employee's response to the proposal. And guess what. The Board has recently affirmed that advice, and even added some specificity as to the extent of the deciding official's involvement.
In a case earlier this summer, the appellant claimed a due process violation because the deciding official in his removal had been involved not only in the investigation of the misconduct that resulted in the employee's removal, but also in investigations of other misconduct not related to the removal. "A clear and fatal Stone violation!" claimed the appellant's representative. Apparently, the appellant believed, as did the HR advisors in the above scenario, that the deciding official must be isolated from the situation surrounding the removal, or the employee's Constitutional rights suffer.
Well, not so according to the Board. Not only did the members conclude (in disagreement with the judge) that there was no problem with due process just because the deciding official had been involved in a couple of investigations, they specified three other situations that would not cause a Stone/Ward problem; the deciding official's:
--Knowledge of background information,
--Concurrence in the desirability in taking an adverse action, and
--Predisposition to impose a severe penalty.
The standard the Board declared it would use in these situations is whether the particular deciding official's knowledge or position made the risk of unfairness to the employee "intolerably high." More specifically, it declared that it would find a due process violation only when the deciding official's "knowledge is a basis for the determination on either the merits of the charge or the penalty to be imposed." Lange v. Department of Justice, 2013 MSPB 52 (July 8, 2013).
On occasion, I am a tiny bit critical of the Board majority's failure to appreciate the reality of the federal workforce (pause here for laughter relative to the characterization "tiny bit"). This time, though, the members get five stars. This outcome is both fair to the employee as well as supportive of how management actually works in the federal workplace. So let those senior managers out of the isolation booth. Let them manage and know what's going on in the organizations for which they are accountable. Just make sure that they can honestly testify that:
"I kept an open mind and did not pre-decide the outcome of the proposal," and
"Even though I knew a bunch of stuff about the employee, I did not consider any of it when making my decision except for what was in the proposal and the employee's response."
And this is such a good decision that it even has a bonus. Remember several newsletter's ago we recommended including copies of the actual documents that established the prior discipline (because of Suggs v.Department of Veterans Affairs, 2010 MSPB 99 (June 1, 2010) and not just a reference that there had been prior discipline? Well, once more the members have complained that the agency file did not contain actual copies of the prior discipline; in this case, a previous reprimand. So if you have not yet modified your practice to do this, do it NOW, or don't come whining to us when you get Board-slapped for leaving it out.
The Board Has Been Wrong for Three Decades
By William Wiley
As chief counsel to the chairman of MSPB, there was not a case that went out the door that I did not touch in the later 1990's. I may not have agreed with all the outcomes, but by jingles I had a chance to voice my opinion. Unfortunately, one of the issues I was waiting for a chance to argue never came up: What exactly is the requirement for indefinitely suspending an employee?
The reason I was waiting for one of these cases to come up is that to my read the Board over the years had inadvertently combined two different concepts:
1. The ability of an agency to shorten a notice period from 30 days to seven if the employee had committed a crime for which imprisonment could result, and
2. The ability of an agency to indefinitely suspend an employee if the agency had "reasonable cause" to conclude that an employee had committed a crime.
The unfortunate result of the combination of these two concepts is that MSPB routinely holds that an indefinite suspension is appropriate only in cases in which there is reasonable cause to conclude that an employee has committed a crime for which imprisonment may result. I can find no legal or regulatory justification for raising the bar from just a crime to a crime which might result in imprisonment, but that's the standard you will have to satisfy today. See Hernandez v. Department of the Navy, 2013 MSPB 54 (July 18, 2013).
Another challenge we have in indefinite suspension cases, and that was a major aspect of Hernandez, is a determination as to exactly what constitutes "reasonable cause" that a crime has been committed? We know from past decisions that:
--An arrest or an arrest warrant IS NOT adequate cause, and
--An indictment following a grand jury proceeding IS adequate cause.
But what about other steps in the criminal prosecution process? Is there anything post-arrest but short of indictment that would satisfy the reasonable cause standard? Well, to know the answer to this, you need to be somewhat fluent in the criminal procedures of the particular state in which the criminal charges are being pursued.
In Hernandez, the agency had an arrest, but no indictment. So there was no clear indication of reasonable cause. However, the Board concluded that there was adequate proof to enforce an indefinite suspension because even though there had been no formal judicial determination of reasonable-cause:
-- The employee had been arraigned and formally charged, and
-- The case was scheduled for trial and thereby had proceeded beyond a point that might otherwise have been preceded by an indictment (the crime was a misdemeanor, and did not require a grand jury determination).
So if you have a situation in which you don't have an indictment, but your employee is scheduled for trial in a criminal proceeding (misdemeanor or felony), you probably have reasonable cause that would justify an indefinite suspension. Just be sure that you bone up on your states criminal procedures and that you can point to the possibility of incarceration if there is a conviction for the crime that is charged.
And don't forget, if you have independent proof of criminal activity, e.g., a surveillance video of the guy walking out of your building with the stolen computer on his back, you don't have to rely on the status of the criminal prosecution for you reasonable-cause. You have it right there on the DVD.
What Is This Civil Service All About Anyway?
By William Wiley
Here at FELTG, we know that most all of our readers are practitioners in the field of civil rights and employment law, and we know that you most likely routinely keep up with the new case traffic. So we don’t see us as adding value analyzing all the newest cases that come out because you’re probably already doing that for yourself or getting case summaries directly from the agencies on a periodic basis. What we try to do is to highlight those special decisions that require a bit of extra analysis to understand the rationale of, and more particularly, the real-life impact of some new twist or turn in the field.
For example, the Board recently issued a couple of decisions regarding the retroactive effect of the Whistleblower Protection Enhancement Act (WPEA). In Day v. Department of Homeland Security, 2013 MSPB 49 (June 26, 2013), the Board majority held that the portion of the WPEA that provides that a person is a whistleblower if he makes a disclosure within his normal course of duties has retroactive effect (previous to the WPEA, a disclosure made within normal duties was NOT considered whistleblowing). Then, in King v. Department of the Air Force, 2013 MSPB 49 (August 14, 2013), the Board held that the portion of the WPEA that provides for compensatory damages DOES NOT have retroactive effect.
Not much need for in-depth newsletter article analysis here. We now have a couple of new rules, and that’s all there is to it. Besides, if you can rationalize why one portion of the WPEA is retroactive and another part is not (with a straight face), then you are a better lawyer than is Your Most Humble Servant.
In comparison, the Federal Circuit recently issued a couple of decisions related to positions involving access to security information that not only set new rules, but also warrant a bit of discussion. In one case, the court en banc reversed the Board and held that MSPB does not have the authority to review the merits of an employee’s removal if the removal is based on the agency’s determination that the employee can no longer hold a position that it has identified as “non-critical sensitive.” Office of Personnel Management v. Rhonda K. Conyers, Devon Haughton Northover, and Merit Systems Protection Board, Fed, Cir. No. 2011-3207 (August 20, 2013). In another decision, the court reversed the Board and held that MSPB does not have the authority to order an agency to comply with due process when the agency revokes a security clearance, and thereby indefinitely suspends the employee. Gargiolo v. Department of Homeland Security, Fed. Cir. No. 2012-3157 (August 16, 2013).
Think about the practical impact of these two decisions. Agency management without any review whatsoever can designate positions as non-critical sensitive with the stroke of a pen. Agency management also can similarly designate positions as requiring a security clearance. And once these designations are in place, agency management can suspend and fire employees who occupy these positions without having to defend itself on either the merits or the procedures before MSPB or anybody.
Imperial China invented the concept of a civil service based on merit nearly 2,000 years ago. In that system, government employees were considered to be a class of scholar-bureaucrats irrespective of their family pedigree, a wholly new concept in any society of the time. As such, they were selected and retained based on their merit, not on the whims of their particular supervisor. In 1912, the Lloyd-La Follette Act brought that concept of a protected meritorious civil service into our government. From those beginnings, Congress has seen fit to develop and expand the protections for career federal employees by the passage of laws that are to ensure government workers get fair treatment and are not employed at-will by their political or non-political bosses. These protections are the very backbone of our government.
The federal civil service is a collection of merit systems designed to protect federal employees: discipline appeals, union rights, civil rights, etc. And who are those systems designed to protect employees from?
A. Flesh eating zombies
B. Space aliens with probes
C. Asteroids hurling toward earth
D. Agency management
With these two recent court decisions, we now have a civil service that’s supposed to protect employees from unfair agency management in which we are giving agency management the unilateral authority to exclude employees from those protections. If we are lucky, agency management will do the right thing and designate only those positions that are necessary as merit-system excluded due to the security-relatedness of the work.
If we are not lucky, some agencies will use this new power for evil and not for good.
We have some good stuff for you in this edition of our newsletter. That’s not to say that we don't usually have some good stuff. It’s just that this time we have more good stuff. Or, maybe the stuff we have is just better. Anyway, you get the drift.
And, it’s a good thing, too, since this is our one and only newsletter of August. Deb is off to Scandinavia soon to compete in an Ironman triathlon; Lezli is headed to Alabama to watch her son Ray play in the Senior Babe Ruth World Series tournament; and Carolina is on leave following the birth of her Alex. Bill and I are too old for any of those activities and could use a break from writing articles to attend to all the other work and life-related matters that we otherwise ignore. And, all of us here at FELTG need a bit of battery recharging to gear up for what promises to be a busy fall.
Speaking of a busy fall, in just a little over a month we kick of our schedule of fall programs, including MSPB Law Week (September 9-13), EEOC Law Week (September 16-20), Employee Relations Week (September 23-27), and MSPB & EEOC Hearing Practices Week (October 28 – November 1). Or, make plans to join us in San Francisco in December for Legal Writing Week (December 9-13) or the brand-new, three day seminar Workplace Investigations: Misconduct Seminar (December 10-12). Plus, we have a number of upcoming webinars and onsite training opportunities. Check out our website for all the details.
Oh, I almost forgot. You will continue to get our weekly Case Summary and Barbara Haga’s HR Current and, as a special bonus, we’ll send you some updates from the EEOC’s annual EXCEL conference in Denver, August 26-29.
Read and enjoy.
How to Take a 432 Action with Vigor
By William Wiley
Sometimes it seems as if all I do in these here articles is complain about the Board or point out (in hindsight) some silly mistake that an agency made, ostensibly in the hopes that we can learn from the oversights of each other. [Editor’s Note: I always wondered why Bill does that.] Well, I recently ran across an unacceptable performance removal that was so tightly done that it snapped like a snare drum. It was buried down in the non-precedential case decisions last month, so you may have missed it. But it is worth a read, precedential or not, because it demonstrates how an agency representative who knows what to do can assist line management to remove a non-performer. France v. Department of Energy, MSPB Docket No. SF-0432-12-0299-I-1 (July 18, 2013) (and if you have access, read the initial decision, as well). Here are the highlights:
Surviving a Poorly Designed Critical Element: If you have worked in this area for more than an hour or so, you probably are aware that a lot – if not most – agency critical elements are written so poorly or incoherently that they would never stand judicial review because the employee is entitled to know what is expected of him. Well, this agency got past that problem (if it was indeed a problem; hard to tell from the decisions) by assigning the employee specific tasks to be accomplished during the PIP. Of course, if you’ve been to our famous FELTG MSPB Law Week [next offered September 9-13], you know that we highly recommend this as a method of establishing a PIP. So the first take-away is that assigning tasks to be completed during the PIP is a dynamite way to tell the employee what is expected, and to thereby measure the employee’s performance if he fails to perform even if the performance plan is not the greatest.
Making Use of Periodic Intra-PIP Meetings: Another recommendation from our MSPB Law Week is that the immediate supervisor set up a weekly or bi-weekly meeting with the employee during the PIP to give the employee feedback on PIP progress, or lack thereof. The main statutory reason for doing this is that the law requires that the agency “provide assistance” to the employee during the PIP, and the case law tells us those periodic meetings between the supervisor and the employee satisfies this obligation.
The France case highlights another important reason for having periodic meetings. The judge found (for reasons to be discussed later) that the critical element was flawed. However, because the supervisor held periodic feedback meetings that were documented as to substance and that were highly specific in their criticism, the judge concluded that the agency had given content to the flawed standards, and they thereby survive the challenge of not being specific enough. And the feedback at each meeting was both oral and written, and followed up by a meeting summary, just like we teach. The judge loved that.
Appreciating the Value of the Substantial Evidence Burden of Proof: Every GS-5 Employee Relations Specialist knows that although misconduct removals must be proven by a preponderance of evidence, performance removals must be proven only by substantial evidence, a significantly lower burden. As MSPB has said from the beginning of time, “The substantial evidence standard is that degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support the agency’s conclusion, even though other reasonable persons might disagree.” 5 CFR 1201.56(c)(1). Normally, the Board “should give deference to the judgment of each agency of the employee’s performance in light of the agency’s assessment of its own personnel needs and standards.” See Geer v. Department of the Army, 79 MSPR 477 (1998) essentially quoting from the legislative history of the "Civil Service Reform Act” of 35 years ago, S. Rep. No. 969, 95th Cong. 2d Sess. 10 (1978).
Although some agency policymakers seem to have lost sight of it, a major goal of the CSRA was to make it EASIER to remove poor performers from government. Think about that the next time you run into an agency that has a policy that requires that a pre-PIP be failed before the employee can be PIPed or that sets a multi-month time period for a PIP.
At any rate, there’s a fair amount of testimony in the record in this case about how a number of individuals, some of them management officials, felt the employee’s work product was adequate. However, because the immediate supervisor and the deciding official did not, that satisfies the substantial evidence test.
Defensively Understanding the Hillen Factors: As we teach in all of our FELTG misconduct classes, when confronted with conflicting testimony, the judge will apply the Hillen Factors to determine which witnesses are the more credible and persuasive. Doing so in this case, the judge concluded that testimony given by a management witness was the more believable because the witness was unbiased, had no reason to fabricate his testimony, his demeanor was calm and forthright, and he answered questions only when he had personal knowledge. That, my friends, is a well-prepared witness, prepared by an agency counsel who understands the value of clicking off the Hillen Factors in key testimony. Hillen v. Department of the Army, 35 MSPR 453 (1987).
Handling Critical Elements with Sub-Elements: As we’ve written recently in the FELTG Newsletter, if a critical element has a number of sub-elements, you need to tell the employee how they interrelate and what happens if some but not all sub-elements are failed. In this case, the agency put the employee on notice that failure of the problematic sub-element warranted removal. Bingo, exactly what needed to be done.
Ignoring Pre-PIP Performance Unless It Is Acceptable: I run into HR specialists and agency attorneys all the time that require supervisors to prove pre-PIP unacceptable performance before they will “allow” the supervisor to PIP the employee. Well, those folks don’t know the law. As the judge said in this decision, “The Board has consistently held that an agency is not required to prove that an appellant was performing unacceptably prior to the PIP. [citations out the wazoo]” Enough said?
Surviving a Claim of a Stone Due Process Violation: After the immediate supervisor issued the proposed removal, the employee’s attorney requested certain additional documents from the agency’s attorney. When she provided those documents, agency counsel also sent copies to the deciding official and told the appellant that he had an additional opportunity to respond to this new documentation. Because of the handling of this new documentation, the judge found no due process violation even though the employee’s counsel argued that there was. This is the trick we teach in our FELTG discipline and performance seminars. The deciding official can consider new documentation not part of the proposal letter AS LONG AS he copies the employee and allows a new response period to comport with the law.
As an aside, the appellant’s able counsel during the response period demanded that agency counsel state the relevance of each document in the proposal package. Agency counsel declined to do so, exactly as she should have. There’s no requirement on the part of the agency to specifically state the relevance of each document, only to provide the documentation relied upon. This request for relevance is a common demand of experienced appellant representatives, and agency representatives should be aware that there’s no requirement for such specificity.
Laughing in the Face of an Age Discrimination Claim: The appellant was 49 years old and therefore within the protections of the Age Discrimination in Employment Act. There was considerable testimony that the appellant’s supervisor treated older employees forcefully, requiring them to work harder and be held accountable for their time more than did previous supervisors. However, there was also testimony that the older workers may have needed closer supervision, and no direct evidence that younger employees were not also managed closely. Of particular significance to the judge seemed to be that although the appellant was the only employee ever PIPed by the supervisor, there were several employees older than the appellant who were NOT PIPed. [Note to agency counsel: You ought to be able to establish this sort of defensive fact in many cases in which discrimination is claimed, that there are other members of the protected group who have not been adversely treated.]
Separately, the appellant pointed to some interesting statistics. In 2008, out of 3000 employees at the agency, only two were PIPed. However, in the year of this removal, the agency PIPed about 30 employees, 90% of whom were 40 years old or older. In response, the judge found no discrimination because the majority of employees at the agency (about 80%) are 40 years old or older, and there was no other evidence to suggest age animus.
Still Learning New Tricks After All These Years: Although the agency’s HR specialist and legal counsel did a super job of building this action, the judge still found fault – although the fault was later corrected – in the agency’s statement of tasks to be accomplished during the PIP. The judge concluded that the statement of tasks alone did not provide a “firm benchmark” toward which the employee could aim his performance. Although the Board will no longer release to us PIP initiation letters in response to a FOIA request, my guess is that what might have been missing would be a statement like this at the end of the task listing:
Standard of Performance: Failure to complete any two of these tasks during the PIP will constitute failure of this critical element.
Regardless of exactly what happened here, I will now tweak my PIP initiation letters to use the somewhat magical phrase, “firm benchmark.” For example, instead of saying “Standard of Performance” in the above example, I will from now on say something like, “Firm Benchmark: Failure to complete any one of these …” Hey, if it helps reduce the chance that I will confuse the judge, then “Hocus-Pocus, Firmious-Benchmarkious!” just like Harry Potter would say. And when I’m conjuring up my Patronus, this case just might be the happy memory on which I focus.
Expecto Patronum! (Wow, it looks just like Ernie.)
Agency Liable for Husband’s Back Pay
By Ernest Hadley
So, I was doing some research for a custom webinar for an agency next week on compensatory damages. By the way, this format happens to be one of the best deals going for those tight training dollars. But that’s beside the point. The point is that sometimes in looking for one thing you just stumble across something else.
I was looking for some recent examples of cases with various damage awards and I ran across this case, Jones v. National Security Agency, EEOC Appeal No. 072012011 (2013), with a $50,000 award. The administrative judge awarded $20,000 in damages and the Commission bumped it up to $50,000, so I thought, “Here’s a good example.” And, it was.
But that wasn’t what really caught my attention about the case. What caught my attention was the fact that the Commission upheld the AJ’s order that, as part of the relief, the agency was liable not only for the complainant’s back pay but that of her husband. How did he do that, you ask? Well, let me try to explain.
The complainant was a GS-15, Chief of Cryptologic Services Group in Key West, FL. Believe me, you really don’t want to know what these folks do. Suffice it to say, it’s important-type stuff. When the complainant was selected for the job, she conditioned her acceptance on a “spousal accommodation.” Yes, I know, there are lots of folks out there who would probably like one of those. In this case, though, the spousal accommodation was that her acceptance was conditioned on the agency offering her husband employment. The complainant’s request was granted by the agency and the husband was given a job.
The case has a rather complicated factual history, but for our current purposes, what’s relevant is that the agency ultimately curtailed the complainant’s position on July 10, 2007. Because her husband’s job was contingent on her job, the agency also curtailed the husband’s employment as of that date.
After a hearing, the administrative judge entered findings of race discrimination and reprisal. As part of the remedy, the judge ordered the agency to pay both the complainant’s and the husband’s back pay with interest. Not surprisingly, the agency challenged that order arguing that because the husband had not been subject to discrimination, he was not entitled to a remedy.
In a short analysis, the Commission noted that the starting point was the seminal case of Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). The Albemarle case sets down the basic principle that the standard for relief under Title VII is to put the victim of discrimination as nearly as possible in the position he or she would have been in but for the discrimination.
Here’s what the Commission had to say:
Here, because Complainant's husband's position was obtained through a spousal accommodation, his position was dependent on Complainant's continued employment. This case is distinguishable from the case cited above because when Complainant was curtailed due to discrimination, Complainant's husband's position was automatically curtailed as well, resulting in a significant loss of income for Complainant's household. This loss of income to Complainant is directly attributable and inextricably linked to the Agency's discriminatory conduct, and would not have occurred "but for" the Agency's discrimination. See Knight v. Brazoria County, EEOC Docket No. 11980003 (Aug. 22, 2001) (The Commission found that Complainant was entitled to monetary compensatory damages where an attempted arrest of her spouse, who also worked for the employer, was based on reprisal for Complainant's protected EEO activities). As a result, we find that the AJ's issuance of back pay and interest for Complainant's husband's curtailment is an award necessary to make Complainant whole because of the significant income that was lost as a result of the Agency's discrimination, and is not a separate award to Complainant's husband.
The case relied on by the agency and referred to by the Commission is Hodge v. Secretary of Transportation, EEOC Appeal No. 04910007 (1992). In that case, which involved a hostile environment based on race, both the complainant and her husband were employed by the agency. In closing arguments, the complainant specifically requested that she, and not the harasser, be reassigned. In an enforcement petition, the complainant contended that as part of the relief her husband should also be reassigned to a position at her new location. The Commission found that the complainant was not entitled to reassignment of her husband as part of the remedy because he was not the victim of discrimination.
With regard to the complainant’s position, Chief of Cryptologic Services Group, a few folks have accused me of “cryptologic” thinking. Of course, a few have been a bit less kind. I prefer idiosyncratic, thank you.
The Removal Exit Interview
By William Wiley
Here at FELTG, we claim a limited range of expertise. And I use the word "expertise" very loosely. Give us a federal employment law issue and we stand a decent chance of coming close to a usable resolution. However, get us outside this field of law and we become just another bunch of lawyers trying to figure out what to do in a strange situation. [Hopkins note: unless you have a question about triathlon or fashion – we’ve got the resources to cover those topics too.] So we hesitate to get too far afield with our training and our articles.
However, I just bumped into an issue that is close to what we do in employment law and well worth better minds in an agency giving it some thought and that is the about-to-be-fired employee in possession of and having access to agency documents and records.
If you have attended our MSPB Law Week, you know that as a general rule, we recommend placing the employee on administrative leave during the 30-day notice period of a proposed removal. OPM's guidance contra is misplaced, dangerous, and potentially deadly. And if you do send the employee home during the notice period, sometimes you will have the employee demanding access to "his" agency computer so that he can access information to defend himself.
Well, there's no right to that sort of access during the notice period and allowing that access is potentially destructive to the agency. Geez, when Ernie, Deb, Barbara, and I come onsite to do training for agencies, many times we aren't allowed to plug in a flash drive to use PowerPoint in the classroom. And we're the good guys. There's just no way that a federal agency should allow an employee who's been charged with misconduct or poor performance so serious that he should be removed to access "his" government computer as if he's just a regular employee.
But what about electronic documents and files the employee already has in his possession? Should the agency attempt to retrieve those? Well, they don't let me help run a federal agency any more, but my thought in general would be "Hell, yes!" Here are some questions that if I worked within an agency I would consider asking the employee as I was ushering him out the door pre-removal:
• Do you have any agency information in files at home?
• Have you used your home computer for agency work?
• Have you used your smartphone or tablet for agency work?
• Have you downloaded any agency files or documents to your personal accounts? If so, why?
• Does anyone else have access to your electronic work files and accounts?
• Do you understand that you must work with the IT department to return all electronic agency information within your possession?
Again, I claim no expertise in the world of electronic law information. In fact, if you've ever seen me setting up the projector for one of our seminars, you may come to wonder if I also have a problem turning on a light switch. However, I know government property when I see it, and I know it belongs to the government, not to an employee of the government. When you remove someone from the workplace for misconduct or performance, you always let him or her take home all personal possessions. It might do you well to have a big pow-wow with the Smart People in your agency and develop a standard protocol for getting electronic information back from departing employees, as well.
The Proper Use of Pronouns Isn’t Always a Matter of English
By Ernest Hadley
Several years ago now for reasons that are unimportant to this article, I had the opportunity to attend a support group meeting for a small group of transgender individuals. It was one of those frigid and blustery February nights here on the Cape that keeps most folks at home and the rest of us wishing we could be. But nonetheless I drove the 25 miles or so and ascended the stairs to a small meeting room in a local parish house.
I admit, with some degree of embarrassment since I’m a good liberal, that I drove to the meeting with some trepidation. Just what had I gotten myself into this time? Living just outside of Provincetown, I knew a lot of folks who are gay or lesbian and even a drag queen or two but not anyone, or at least anyone I knew of, who was transgender. I didn’t know what to expect.
For some two hours, I listened to each of them tell his or her story. And, yes, each story was unique. But there were also some common threads in each; the fear of rejection, the pain when the rejection occurred, and the simple yearning to be accepted for who they were and not viewed as some sort of freak show. No, I didn’t learn much about the technical aspects of gender reassignment, but that wasn’t the point of my visit. I learned something more important; namely, I still had some work to do on dealing with people based on who they are and not what they are.
That’s work that we all need to be doing on an ongoing basis if we’re going to rid the federal workforce of what now isn’t just boorish behavior, but prohibited discriminatory behavior. Some of you undoubtedly read last week’s case summary on Jameson v. Postmaster General, EEOC Appeal No. 0120130992 (2013). Among the allegations remanded for hearing in that case was that the complainant’s supervisor over the course of a day continually referred to her using the pronoun “he.” The Commission, rightfully so, found that “[i]ntentional misuse of the employee’s new name and pronoun may cause harm to the employee, and may constitute sex based discrimination and harassment.”
Recently, you may also have read of a settlement between the Departments of Justice and Education and the Arcadia Unified School District in California providing that “the school district will take a number of steps to ensure that the student, whose gender identity is male and who has consistently and uniformly presented as a boy at school and in all other aspects of his life for several years, will be treated like other male students while attending school in the district.” And, here’s the kicker: apparently the student’s classmates had accepted what the school district could not. Part of the case involved a seventh-grade camping trip. The student was required to stay in a separate cabin with one of his parents even though his male friends had requested that he be allowed to stay in a cabin with them.
The education that’s required here goes beyond just telling employees to use the pronoun of a coworker’s identified gender instead of birth gender. Excuse me, but any idiot should know that. Of course, we all know that some folks are the exceptional idiots that do need to be told. No, the real challenge here is to begin educating the federal workforce on what it really means to be transgender so that no one who has an ounce of compassion toward fellow workers would even think of engaging in the type of behavior that is, plain and simple, hurtful.
If some of the younger folks, like the seventh-graders classmates can grasp it, it really shouldn‘t be that difficult for the rest of us.
This Judge Doesn’t Need Me to Stroke Her Ego
By Deborah Hopkins
This summer, I took a Moot Court class. There’s nothing quite like staying inside on weekend afternoons to work on a (fake) appellate brief, while most everyone else is on vacation, at the beach, in the pool, or on a roof deck enjoying a happy hour somewhere. But such is life, and I must say I do enjoy being in law school. It’s a privilege and (attorneys, please don’t laugh too loudly) in many ways a dream come true.
Moot Court provided a number of learning opportunities that I’d be remiss not to share with you, our loyal readers. So below, I’ve highlighted some advice that applies to oral arguments and hearings, and perhaps to other formal legal proceedings as well. Learn from my mistakes, and from the mistakes of my classmates, and maybe you’ll save yourself from embarrassment when the courtroom is everything but moot.
Show up to hearing on time. Sadly, one of my classmates found this one out the hard way. He forgot to verify his scheduled time slot for oral argument, and when he arrived an hour late he was told that the deadline had passed, and he could not make it up. Apparently, along with professors, judges don’t like it when parties and counsel don’t show up on time.
When you refer to the judge as “Your Honor,” say it loudly enough so she can hear you. I’ve never been accused of having a quiet voice, but wouldn’t you know, the first time I ever spoke too softly in my 31 years of life on this planet, was when the judge asked me a direct question, and I responded “Yes, Your Honor,” but the “Your Honor” got lost amid the blasting air conditioner and voices in the hallway. The professor made an example of me and shared with the class that attorneys must always refer to the judge as “Your Honor” when directly addressed. I felt like defending myself and arguing that I had said the magic words, but I instead resorted to being viewed as a bad example of an oral advocate. I thought I’d save the arguments for later.
Don’t interrupt the judge. When the bench is hot, it’s easy to get defensive and try to clarify your position. By all means necessary, bite your tongue until the judge stops speaking, and only then make your reply. Interrupting or talking over the judge is frowned upon, and the last thing you want is a grumpy judge who gets annoyed every time you speak. [Wiley Note: And if you are not already in an on-going exchange with the judge, but you have something to say, ask permission: “Your honor, may I be heard?” No, the Big Guys may not remember to express this little showing of respect, but until you are a Big Guy, you will earn points with the judge if you do.]
During hearing or oral argument, do NOT say to the judge, “That’s a good question, Your Honor.” I made this mistake. Most of my classmates made this mistake. It’s a natural reaction, when faced with a tough question, to respond with some variation of “That’s a good question,” as a stalling technique to buy a few seconds to give an answer. But I was informed, directly from the bench, that all judge’s questions are good questions, and the tribunal doesn’t need to be reminded of that. Well, then. Duly noted. [Editor’s Note: A corollary rule. Never, ever say, “That’s a dumb question, Your Honor.”]
Know the standard of review for the case on appeal. Because the judges WILL ask about it, and if you don’t know what the standard of review is for the case at hand, it will be a very uncomfortable moment of silence. Fortunately, this was not a mistake I made – but last year during oral arguments for the D.C. Court of Appeals, I witnessed an appellant’s attorney who was faced with this very situation, and he did not know how to answer. It was painful to watch, but, I’m sure, not as painful as it was to be the attorney in that situation.
Be prepared to modify the argument. Before my oral argument, I had the details of my presentation all set to go. I knew what I was going to say, how I was going to say it, which cases I would cite, and how many minutes it would take me to do so. Then, immediately after my introduction, the plan went out the window because the judges started asking all kinds of questions that took the conversation in a completely different direction. Familiarity with the record and the law helped tremendously, and I found that coming back to the top two or three points I wanted the judges to remember when I finished my argument, was a good way to get back on track.
I could probably write a book about all the lessons I learned from one little semester of Moot Court, and I’m sure our readers would have lots to add to it from the annals of their own experiences. If this topic interests you, or if you ever plan to litigate before the MSPB, EEOC or in arbitration, we discuss all of this (and lots more) in detail during our MSPB & EEOC Hearing Practices Week in Washington, DC, October 28 – November 1. It’s a limited enrollment workshop, so you’ll want to register sooner rather than later. We hope to see you there!
A CBU Employee's Right to Representation
By William Wiley
OK, team. Here's a chance to try out your federal labor relations chops. Lets see how you do with a little pop quiz to test your knowledge:
TRUE OR FALSE
A federal employee in a collective bargaining unit is entitled to be represented in an investigation into possible misconduct if:
• The employee reasonably believes he is the target of the investigation and may be subjected to discipline for his conduct, and
• He requests to be represented.
(Here, hum the Final Jeopardy tune for a few seconds before Alex and I give you the answer ...)
Drum roll please; the answer is ... FALSE.
What's that, you say? Didn't we here at FELTG ever hear of the Weingarten right, that entitlement carried over from private sector law into the Civil Service Reform Act that established all sorts of judicially enforceable rights for those employees who vote in a union to represent them? Haven't agencies been giving CBU employees the right to be represented under the Weingarten principle for nearly 35 years?
Well, if they have, they haven't read the law. Here's what it says:
5 USC 7114(a):
(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at—
(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if—
(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and
(ii) the employee requests representation.
So if you know the law (and you would if you had attended the FELTG seminar FLRA Law Week starring Peter Broida and me; next offered December 2-6 in Washington, DC), you know that it's the UNION that is given the right to be present, not the EMPLOYEE who is given the right to be represented.
Why does this matter? Because if the employee was given a representation right, then it is arguable that the employee could select a representative that is not approved by the union. However, because it is clear that it is the right of the union to be present in the investigation once the employee requests representation, not the right of the employee to be represented, it is the union that controls who the representative will be. If a CBU employee shows up with a non-union approved representative for a misconduct investigation, that representative need not be allowed to participate (and either directed to return to his regular work or be escorted from the facility by security, depending on the circumstances).
And for those of you who are concerned about maintaining a decent relationship with your union, as a strategy (not a legal requirement) you might want to inform the employee of his Weingarten right to request a union representative. If it were me, I would.
Of course, there are probably a lot of things I would do that you would not, but those alternatives are probably best saved for another time.
More on Confidentiality of Settlement Agreements
By William Wiley
Several months ago in this space, I argued that if you are on the management side of things, it is best not to include confidentiality provisions in settlement agreements. Although there is a gut response to want to keep the specifics of the agreement quiet (so that coworkers won't know how much money you are willing to pay out to avoid litigation, and so Congress won't see how much administrative leave you can afford in the face of sequestration furloughs), experience teaches that the lesser evil is not to agree to confidentiality because:
• The details will probably get out anyway, and
• There is a good likelihood that the agency will suffer greatly if some agency employee mistakenly breaches confidentiality months or even years down the road. The back pay can be truly significant.
To these reasons, I want to add another:
• If the employee breaches the confidentiality agreement, management has little recourse.
Take a typical hypothetical case in which the agency settles a pending proposed removal with a cash payout to the employee, reimbursement of his attorney fees, and maybe even a little paid administrative leave in exchange for his quitting voluntarily. Then, the next thing you know the employee is up on Capitol Hill spilling the beans about the settlement and even doing an interview with Laura Logan on 60 Minutes about how stupid the agency was to give him all these goodies. A clear and patent breach! you declare, trying to remember exactly what they taught you about "patent" in law school. You had a contract, the employee broke it, and you're going to make him pay, by jingles!
So my question is ... how? Are you going to sue him to get the cash settlement back? No, you don't have the authority to go into court, and Justice doesn't mess with nickels and dimes (unless they are made of medicinal marijuana). Are you going to sue the lawyer to get those fees returned? No, same problem with going into court, plus the lawyer didn't breach the agreement that she was not a party to; the employee did. And don't even think about that paid administrative leave that you traded for the resignation. Spilled milk, water under the bridge, and all that. I guess you could declare the agreement as void, thereby freeing you from sticking with a clean record promise and your own silence as to the specifics of the agreement, but that would not be particularly fulfilling, now would it?
I guess some smart agency rep could come up with a "poison pill" to include in a settlement, something like:
Should the employee breach the confidentiality clause in this agreement, he agrees to accept a removal for cause and to waive all appeal rights appurtenant thereto into perpetuity and beyond, including the rights of his heirs, issues, and issues yet unborn. Amen.
Yeah, well, good luck getting agreement to something like that. The employee may not be the brightest light on the string, but I've never seen anybody in a settlement accept a poison pill proposal.
Bottom line: Do not blindly include confidentiality clauses in settlement agreements. There may be the rare instance in which they are a good idea, but in most all cases from the agency side, they are the greater evil.