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April 16, 2014 FELTG Newsletter

Ever so slowly there are signs that spring may be thinking about coming to Cape Cod.  The whales returned a few weeks ago.  The snowdrops and crocuses came out only to be battered by yet another storm and now the daffodils are showing signs of life. [Lezli’s note: the ospreys are nesting and the peepers are singing; that is what makes spring official on the Cape]. This does not, of course, mean that we have seen the last snow but it does mean that any more snow will not last.  Soon enough, winter will be a distant if not entirely pleasant memory.

Speaking of pleasant memories, we just wrapped up our spring session of EEOC Law Week with a great group of folks and I’m already looking forward to Legal Writing Week, May 5-9, one of my favorite courses to teach.  But if writing isn’t your thing, we have plenty of other events coming up.  Check out our agendas for Supervisory HR Skills Week, FLRA Law Week, and Leave & Attendance Management and Performance Management, all planned for the coming weeks. Or, register for a webinar or ten. Up next on the docket is a supervisor session on Hostile Environment Harassment (it’s tomorrow so act quickly!) and our world-famous Significant Federal Sector Developments: The Latest and Greatest April 29. There really is something for everyone!

We've got what I think is another great newsletter with everything from Bill waxing philosophical to a mysterious new author.  So, read and enjoy.

EH

EEO: Can We Make This Any More Complicated?
By Anonymous*

*To be consistent with the EEOC’s recent policy change that no longer designates complainants by name but by “Complainant” only, I have decided to adopt a new byline that protects my identity and allows me to disavow all opinions expressed in articles written by Anonymous.[Wiley Note: In a show of support for Ernie’s point, when referring to EEOC in articles I write, I will refer to it as “TAD,” That Agency of Discrimination. Yes, I will do anything possible to add clarity to our articles.]

Let me tell you a couple of stories.  Well, they’re not stories, really.  They’re the facts of cases, or at least the facts as recited by the Office of Federal Operations in Complainant v. Secretary of Defense, EEOC Appeal No. 0120131538 (2014) and Complainant v. Secretary of Army, EEOC Appeal No. 0120140294 (2014).

Here’s the first story.  The complainant initiates contact with the agency’s EEO office on September 10, 2012.  He provides 16-pages -- yes, 16 pages --describing the alleged harassment he believes he has been subject to based on age and disability and also the corrective action he is seeking.  He designated Person A (isn’t that what the Artist Formerly known as Prince changed his name to?) as his representative.

On September 17th, the EEOC director contacts the complainant by email and says she has informed his representative that she needed clarification of his requested resolution of the complaint. Clearly, 16 pages were not enough to get the process started.

On October 4th, the complainant responds indicating that he did not respond to the director sooner because of a death in his family and had just returned to work on October 1st.  He also informed her that the agency’s email system was having some problems that week, but he would forward the requested information to his representative.

On October 12th, the EEO director sends an email to the complainant acknowledging that she had received the information from the complainant’s representative and that once the complainant had an initial interview with an EEO counselor, the complaint would be processed.  

On October 17th, the complainant sends an email to the director indicating Person A is no longer his representative and he would contact the counselor to set a date for the initial interview.

The record also contains an October 16th letter from the complainant to the counselor requesting to meet that week and including the information -- you remember the 16 pages? -- previously provided to the EEO director.

If things aren’t complicated enough, on October 24th, Person A sends an email to the EEO director that he is the complainant’s representative.  However, the record also contains an October 26th EEO counselor contact form designating Person B as his representative.  

On November 16th, the complainant is sent a notice of final interview and given his right to file a complaint within 15 days.  The complainant files his formal complaint on November 28th -- 12 days after the notice of final interview.

On January 3rd -- yes, we’re now into 2013 -- the agency sends the complainant a letter proposing to dismiss his complaint.  The agency noted that the complainant had not yet received counseling.  The agency also informed the complainant that if he did not respond by January 22nd, it would dismiss his complaint.  On January 17th, the complainant responds -- just as the agency required him to do -- by declining counseling and noting that he had already filed his formal complaint.

On February 6th, the agency issued a final agency decision dismissing the complaint for failure to participate in the administrative EEO process.  

Yep.  This is the kind of nonsense that this unduly complicated and convoluted process spawns.  The outcome?  No rocket science here.  A year after the FAD, the EEOC reversed the dismissal, noting that the complainant did not object to participating in counseling until after he had filed his formal complaint, and he had provided a detailed account of his claims.  The Commission also reminded the complainant of his obligation to cooperate during the investigation.

And, now onto our next story.  In this case, Complainant v. Secretary of Army, EEOC Appeal No. 0120140294 (2014), the complainant, who is not represented during counseling, receives a notice of final interview and right to file formal complaint on July 11, 2013.  The complainant retains an attorney who files a formal complaint by certified mail on July 26th, within the 15-day limit.

The attorney said that due to a “family emergency,” he was faced with handling multiple filings in multiple cases on the evening of the 26th.  He did not have the address for filing the formal complaint in front of him and instead mailed it to the EEO counselor.

The EEO counselor declines to accept the letter on August 2nd and it is returned to the complainant’s counsel.  He contacts the agency and is told to email the complaint, which he does.  The agency dismisses the complaint as untimely.

I suspect you can guess the outcome on appeal.  Yep, some nine months later, the EEOC reversed and sent the complaint back to the agency for processing.

What’s the point of this story?  I don’t know, except that sometimes the whole thing seems like a pointless exercise.  You see, I hear all the time about complainants filing frivolous complaints that clog the system.  From my perspective, there are at least an equal number of frivolous decisions by agencies that result in needless appeals clogging the system.  

Just What is Conclusory Medical Documentation?
By William Wiley

Once more, we are blessed with an insightful question from one of our favorite readers regarding that always-confusing area of acceptable medical documentation. The issue of the adequacy of an employee’s medical documentation is critical to the everyday employment law questions of reasonable accommodation, sick leave approval, and medical inability to perform removals. As our reader writes:

The board in many of its opinions dismisses medical information as “conclusory.”  In, Joseph P. Clemens v. Department of the Army, 2014 MSPB 14, the Board dismisses on precisely that ground.  It opines, 

The medical records from his physicians are conclusory and unspecific as they merely suggest that the appellant might be accommodated through “text to voice.”

In this decision, the Board reversed the Initial Decision and sustained the removal for physical inability to work as a Supervisory Public Safety Dispatcher after the employee suffered a debilitating stroke that rendered him with a significant loss of speech ability.  The Board found his speech impairment sufficient to leave him incapable of performing a critical function of his job. Accordingly, it reversed.

I’ve always wondered what constitutes “conclusory” medical statements, or diagnoses, or in this case, records sufficient for the Board to dismiss as unworthy of consideration.  I suppose agencies can dismiss on similar grounds but at considerable peril?  

“My patient can’t work because he suffers from severe allergies…”  Conclusory, yes?  

What about, “My patient should be off work for x weeks so he can recover from…”  Conclusory?

In Clemens, the physician states that the patient might be accommodated through “text to voice” apparatus, and the Board found that statement to be conclusory.    

What medical opinion, or diagnosis, or prescription is not conclusory?  What’s an example of a non-conclusory medical statement? 

Is this just another example of the SCOTUS saying, “We don’t know what pornography is but we’ll know it when we see it…”?  

And our FELTG response, for whatever it’s worth:

Dear Reader-

As usual, you’ve asked a good question and guessed at a good answer. We know it’s conclusory when two members of the Board say it’s conclusory. But I’ll take a whack at how it’s supposed to work, using your conclusory examples below and converting them into clearly non-conclusory statements.

“My patient can’t work because he suffers from severe allergies…”  

Non-conclusory: “My patient suffers from allergies. The allergens that cause his allergic reaction are found in the air between MAR and AUG in this area. His reaction is that his eyes swell closed and he cannot breathe unless lying down.” This statement is factual without drawing the conclusion that he cannot do his job. That job-related conclusion is now left to the supervisor who is free to say; “Well, he can do his job if we put him into a sealed room with a big HEPA air filter.” The physician has stated only facts. He has stopped short of drawing a workplace conclusion from those facts.

What about, “My patient should be off work for x weeks so he can recover from…” 

Non-conclusory: “My patient must be on bed rest for four weeks. He is recovering from brain surgery. If he stands up or tries to think, his head will explode.” Facts, medical predictions, but no work-related conclusions.

In Clemens, physician’s prescription the patient might be accommodated through “text to voice” apparatus is conclusory.   

Non-conclusory: “Mr. Clemens has had a stroke. The stroke has destroyed much of the Broca area of the left hemisphere of his brain. Therefore, he is unable to speak and will continue to be unable to speak for the foreseeable future.” Again, no conclusion about what would allow Clemens to do his job.  

That’s how it’s supposed to work. The physician can make factual observations and draw medical conclusions from those facts, but if she crosses over and draws conclusory opinions about workplace accommodation, then she has gone too far.

Another improper “conclusory” area is the situation in which the physician states a medical (not workplace) conclusion, but does not address the facts on which he bases that conclusion. For example, a conclusory statement that the supervisor can reject is a note that says, “I have evaluated my patient and I conclude that he suffers from post-traumatic stress disorder (PTSD). His PTSD causes him to be photophobic and he cannot work in a brightly-lit work area.” PTSD may well prevent an individual from working in a brightly-lit area, but the physician has left out the facts on which he draws the medical conclusion that the correct diagnosis is PTSD.

This scenario brings home one of the great challenges in this area. We employment law practitioners are trained in separating the physician’s medical conclusions from the workplace accommodation conclusions. But how do we validate that the physician’s medical conclusions are reasonable based on the facts on which the physician has relied to make those conclusions? For example, what if the physician said something like this: “The patient is afflicted with a multisystem autoimmune disorder including autoimmune thyroid disease, inflammatory bilateral thyroid orbitopathy, primary hypothyroidism, Sjogren's syndrome, lupus erythematosus/psoriatic arthritis overlap syndrome, and celiac disease. Therefore, I conclude that the patient has PTSD and cannot work in bright light.” These certainly are impressive-sounding medical facts. However, to draw from these facts the medical conclusion that the patient has PTSD is simply wrong. Even more deeply, how do we know that the medical “fact” that the patient has “autoimmune thyroid disease” is correct? In reality, there are hundreds of objective medical observations that underlay every mini-medical conclusion that is the foundation for the ultimate PTSD conclusion. How is an agency to validate those determinations?

Some agencies think they are dealing with this dilemma by having an agency occupational health physician review the medical documentation that the employee provides. And a sharp occupational health physician may very well reject the diagnosis of PTSD in the hypothetical as not supported by the medical facts/mini-conclusions identified by the treating physician. However, do you really think that an agency physician is going to go back to the treating physician and say, “Give me all the objective lab tests, x-rays, and physical observations on which you based your conclusions that the employee suffers from multisystem autoimmune disorder including autoimmune thyroid disease, inflammatory bilateral thyroid orbitopathy, primary hypothyroidism, Sjogren's syndrome, lupus erythematosus/psoriatic arthritis overlap syndrome, and celiac disease”? Well, they are supposed to according to OPM regulations, see 5 CFR 339.104. 

As a result of the relatively recent amendments to the Americans with Disabilities Act, “That Agency of Discrimination” (TAD) has said in its guidance memoranda:

In enacting the ADAAA, Congress made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. Congress overturned several Supreme Court decisions that Congress believed had interpreted the definition of “disability” too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes, and epilepsy. The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals.

To my read, TAD is saying that whether a medical condition constitutes a disability under law is a decision to be made broadly. However, it is NOT saying that the determination as to whether an employee actually has a medical condition is to be subjected to any less rigorous test for truth and accuracy than we have always had. As I have written about in this newsletter recently, it is drop-dead easy for an individual to purchase false medical documentation.

Bottom line: MSPB is saying what it has always said; an agency is not bound by conclusory medical documentation.  The distinction between conclusions relative to the workplace as compared to medical conclusions is rather easy for us employment law practitioners to make. Conclusions as to whether a particular medical conclusion is supported by the objective medical facts are going to require some serious work on the part of agency physicians to be meaningful.

Are You a Microaggressor?
By Anonymous*

Several years ago, we took a family trip to Costa Rica.  It was a great trip.  We hiked, saw some extraordinary birds, walked on suspension bridges through the canopy of the cloud forest, visited a coffee plantation and, with my son Luke and daughter Mairead, I went zip-lining.  (Not entirely sure I could be talked into the latter again.)  Part of the success of the trip was, no doubt, Costa Rica itself, but some was probably due to the fact that we knew with my daughter Jasmine leaving for college in the fall, this was likely to be last the vacation for the whole family in quite a while.

We reentered the U.S, in Miami as I recall, and approached the Customs and Border Protection checkpoint passports in hand.  The agency, a young man probably in his early 30’s, dutifully looked at each of our passports and, in turn, each of us.  He asked each of the kids a few questions:  What’s your birthday?   What’s your home address?  He stamped the passports and handed them back to me.  He then told the rest of the family that they could go but asked me to stay behind a few minutes.  My wife asked if she could stay, as well, and with his assent we sent the kids off to find our luggage.

“I didn’t want to embarrass your son in front of everybody,” he said, “but I can’t help but notice that he looks different from the rest of you.”  Well, you don’t really need to have the deductive powers of Sherlock Holmes to figure this one out.  Luke stretches out to all of 5’2” and I doubt he’d eclipsed 5’ at that point.  He has brown skin, very dark brown eyes and black hair.  You’ve probably guessed from the photo that sometimes accompanies these articles, that he doesn’t look like me at all -- so much the better for him -- or like my wife or his two sisters.  There was never any great debate over telling Luke he was adopted.

At the time, I wasn't sure how to react.  Part of me was relieved that he didn’t ask in front of Luke and his sisters.  Part of me was offended because I believed the only reason for asking the question was the color of Luke’s skin. To be honest, I don’t think our daughters, both of whom are biological, look particularly alike.  Jasmine has brown hair and her mother’s height, which is to say not much, and my features.  Mairead has blonde hair, my height and her mother’s features.  Obviously, the answer to the question had no bearing on our reentry into the country as our passports had already been stamped and returned to us.

The reason I write about this is that I recently learned there’s now a term for events like this -- they’re called “microaggressions.”  As with all things these days, there’s even a website -- www.microaggressions.com.   Microaggressions are the subtle, and often subconscious ways, that we use stereotypes.  

Now, I don't think that the agent who asked the question had any bad motive; certainly, not one that he conveyed.   But it goes to the heart of a notion that we’ve tried very hard to convey to our kids.  “Family isn’t about how you got here.  The mere fact that you’re here makes you part of the family.”

Fast forward to just a few months ago.  Luke was in Ireland studying at the Burren College of Art and I went to visit him.  We were, as of course one must do in Ireland, sitting in a pub, sipping on a Guinness and listening to music.  An older man, aptly named Declan and about three sheets to the wind, asked if he could sit at our table.  No problem.  After looking at Luke for a while, he asked “What’s a young guy like you doing with an old guy like him?”

“He’s my dad,” Luke said.

“Then your mom must be the one who’s Hispanic.”

“No,” Luke said.  “She’s not.”

“Oh, then he’s not your real dad.”

Luke then explained to Declan that, yes, he knew there were two people out there that’s he’s biologically related to but I was his dad and there was no real about it, just his dad plain and simple.  Declan eventually wandered off into the night, no doubt confused by Luke’s insistence that he did not have a “real” set of parents and, presumably, a “fake” set but just a mom and dad like many other folks.

The Microaggression’s blog gives several other examples:

H&R Block employee when my best friend (who’s black) and I went to get our taxes done together: “Employed?”
Me: “Yes.”
H&R: “Any children?”
Me: “No.”
H&R, turns to my friend: “Okay, and you. Employed?”
Him: “Yes.”
H&R: “Any children?”
Him: “No.”
H&R: “Are you sure?”
Him: “Um…”
H&R: “Just checking.”
Him: “Yes, I’m sure.”

I was at the bar with several new coworkers when I was approached by a white guy who told me I was beautiful and asked what my nationality was. I told him I was African-American and he asked, “But what are you mixed with? Who is white? Your mom or your dad?”  This made me feel angry and sad. It’s a shame that some people think black people must be mixed or biracial to be attractive.

Me: Hey, should I go to a steakhouse or to a sushi place for dinner with my family?
Friend: I think you should go to the steakhouse because you guys know how to make sushi, right?

Often when I have dinner at people’s houses, they ask me if I would prefer chopsticks, regardless of the meal!

I’m fine with gay people as long as they aren’t gay around me.

The gay couple who moved in next door are not as comically flamboyant as the gay people on TV. It’s like they’re not even trying.

I’m sure you can think of plenty of other examples, just as I’m sure that I’ve engaged in some microaggressions of my own.

Some of you may recall that I wrote recently about an EEOC African American Workgroup Report that concluded, among other things, that “[u]nconscious biases and perceptions about African Americans still play a significant role in employment decisions in the federal sector.”  And, of course, that doesn’t apply to just African Americans.  That just happened to be the focus of the workgroup.

It is, in many ways, the cutting edge of our field.  Blatant discrimination still exists but, more and more, it is being replaced by far more subtle forms of discrimination; forms that are harder to identify and, as a result, harder to correct.

So, let’s leave you with something a little more upbeat.  For Luke’s sixth birthday, we had all the boys in his class over for a party.  Most of you can probably imagine what a herd of six-year-old boys can do to a house in a very short period of time, but that’s neither here nor there.  They we’re all sitting around the table eating cake and Luke made mention of something we call Adoption Day.  It’s the day Luke’s adoption was finalized here in the United States and we celebrate it as a family holiday.  It’s a low-key kind of celebration, usually marked by going out to dinner.  Anyway, one of Luke’s friends looked at him wide-eyed and said, “Luke. You never told me you were adopted.”

You see, these behaviors don’t come to us naturally.  We learn them.  And that gives me hope.

Philosophical Validation Feels So Good
By William Wiley

Of all the terrific experiences I’ve had working within FELTG for these past dozen years or so, one of the best is receiving validation. Not personal validation as in, “Hey, you’re Bill Wiley,” but validation in conclusions and philosophies I had developed over time, but never had reason to address publically. It has been tremendously rewarding to hear things I have thought or said over the years come out of the mouths of some of the great old lawyer brains in our business, among whom I count Ernie Hadley, Renn Fowler, Peter Broida, and Gary Gilbert. 

This past week, I received validation of some of my philosophy regarding this business of employment law, not from other FELTG experts, but from frontline supervisors and even a non-legal magazine article that clarified a rough thought I had about being a teacher. See if any of this hits home with you and how you approach our work.

Losing cases:  Nobody likes to lose a case. We never plan to lose and we fight like the devil to keep from losing. But lose we do, statistically speaking about 30% of the time in an MSPB hearing (if you are an agency representative). But from the early days of my career, I began to see that this fear of losing can cause more harm than good.  Sure, you want to have a tight case before you remove someone, but when is tight tight-enough? What I ran into over and over was the attorney or human resources advisor who would “not let” a supervisor take an action out of an over-abundance of caution, thereby requiring the poor supervisor to trudge along carrying a problem employee when discipline or removal was the better option. “No, Sam, you cannot remove that employee. Even though he hit you over the head with a chair, your wounds were not all that deep and the bleeding stopped eventually. The most you can do is issue a Reprimand and wait for him to do something more serious. It’s only a first offense, you know.”

Staring back in the 80’s when I first started teaching for OPM, I would tell supervisors that if their agency is not losing any cases on appeal, it is not being aggressive enough in holding employees accountable. Sure, you can have a perfect win record before the Board … by not ever removing anyone at all or only in the most egregious situations. But the price you pay is tolerating a whole lot of bad misconduct for the sake of a perfect record on appeal. The analogy I used frequently in class was basketball: “If you play basketball and you never foul, you’re not playing hard enough.”

This week in conversation with a deciding official client, he said to me that even though there is a chance his removal decision might be set aside on appeal, he was going to do it anyway. As he put it to me, “If you play tennis and your serve always goes in, you’re not serving hard enough.” Although his sporting interests are different from mine, clearly he is a management genius.

Making decisions:  One of the most horrific mistakes a management-side practitioner can make in this business is to think that it is his job to decide what and when discipline should be administered. Line management was hired to run the place, not we lawyers and HR specialists. It is the line manager who is held accountable for productivity, not us. And it is the line manager who has to put his life on the line every day that a potentially-dangerous employee is kept in the workplace; we advisors establish our offices behind locked doors so those workplace hooligans can’t get to us. Yes, if you think that as the HR advisor or legal counsel you are vested with the right to tell line managers who they can discipline and who they cannot, you have not read your agency’s delegation of authority regarding discipline, or you are arrogantly misinformed, or both.

Yes, I do have a bit of a soapbox on this one. And when I work with supervisors in a classroom, I often use a workshop to bring home this concept. I give them a situation in which there is no right or wrong answer regarding the level of discipline to be administered, then watch the room divide along lines (after they apply the Douglas factors) in which some of them would reprimand, some would suspend, some would demote, and some would remove.  Then I get to tell them – with high drama, of course – that there is no right or wrong answer. That they should not look to me or any other advisor like me for the right or wrong answer; that the system is set up so that the answer is within themselves. They are free within very wide constraints to manage the way they see fit, to fire at the drop of a hat (if the hat caused significant harm) or to mentor/cajole/counsel for years in a row if that’s how they want to manage. They might be more comfortable to have their lawyer tell them what to do, but theirs is not a system built on comfort. It is a system built on their own management style and their own accountability.

This week, I had a top-level manager in an agency explain to me her style of management. She said she did not want her legal advisor telling her what to do, and that she respected that the supervisors who reported to her would have their own standard for doing things, perhaps different from hers, but just as valid as her approach. Clearly, another management genius at work, at least in my view of how to manage. And I liked the language she used. She said, “When it comes to problem employees, I have a long fuse.” What a nice way to put an intellectual concept into a visual image. So from now on when I speak to supervisors, I will tell them that it is OK (as far as the law is concerned) that some of them have a long fuse and others have a short fuse. What is not OK is for guys like me who give them advice to have any fuse at all. The right answer is dependent on their fuse, not mine.

Explaining stuff:  On occasion after I’ve finished a seminar, a participant will tell me that she enjoyed the presentation and that she really learned a lot. I am sincerely honored and humbled whenever someone takes the time to tell me this. Years ago I found myself responding in this situation by saying in all honestly, that one of my great strengths as a teacher is that I am not all that smart; that if I can understand this stuff, anyone can.

A recent magazine article described the life and times of Carl Sagan, that wonderful physicist who invented the educational PBS series Cosmos among many other significant accomplishments. The author noted that Sagan once described his gift for explaining things as coming from his not being the smartest guy in the room:

I think I’m able to explain things because understanding wasn’t entirely easy for me. Some things that the most brilliant students were able to see instantly I had to work to understand. I can remember what I had to do to figure it out. The brilliant ones figure it out so fast they never see the mechanics of understanding. Achenbach, Joel. “Star Power.” Smithsonian MAR 2014:71. Print.

A much more exacting way of saying what I had been trying to say. Dr. Sagan is clearly a genius among geniuses. And for those readers who like me are never the smartest person in the room, we have now been validated by Carl Sagan himself.

A Downside to Agency Representation of Managers
By Anonymous*

You’re a manger.  You’ve just been named as the Responding Management Official (RMO) in an EEO case.  That’s okay.  The agency has just assigned a lawyer to the case.  So, you’re covered, right?  Not so fast.  That lawyer isn’t there to represent you.  He or she is there to represent the agency.  And, as any hard-edged lawyer will tell you, if that means throwing a manager under the bus to save the client -- i.e., the agency -- well, Greyhound here we come.

Those of you who are agency managers, and maybe agency lawyers as well, should look at a recent Board case, Jones v. Small Business Administration, 2014 MSPB 17 (March 18, 2014).  The appellant in the case filed an individual right of action (IRA) appeal alleging that three personnel actions were taken in reprisal for whistleblowing.  The agency assigned a representative from the General Counsel’s office, Anthony Parham, to the appeal.  The appellant moved to disqualify Parham and the entire General Counsel’s office due to a conflict of interest.  It seems Parham had represented the agency in an EEO case in which the appellant was one of the RMO’s.  The administrative judge denied the motion but certified an interlocutory appeal to the full Board.

The Board denied the motion to disqualify the entire General Counsel’s office because it was untimely.  For reasons not included in the decision, the appeal had been dismissed without prejudice several times and refiled.  The Board’s regulations require that a motion to disqualify be filed within 15 days of being aware of the alleged conflict and the appellant’s motion was some two-and-a-half year’s late.  So far, no problem.  I mean, really, the entire General Counsel’s office?  

On to Parham, now, and it starts to get interesting.  First, the Board notes that an attorney appearing before the Board, and the Commission takes a similar view, is expected to conform to the rules governing attorney conduct where the proceeding is taking place.  That’s right.  It doesn’t matter what bar you’ve been admitted to, you also have to be familiar with the rules where you’re practicing.  In this case, the hearing was set for Glendale, CA, and so it was the rules of that left-leaning great state where Brother Bill makes his abode that apply.

And, just as Bill and I talk about in our annual webinar on Legal Ethics for Government Attorneys, as a general rule, agency attorneys are treated much as corporate attorneys in terms of establishing the attorney-client relationship.  The Board analogized the situation in this case to a California case, Meehan v. Hopps, Cal. App. 2d 284 (1956), where the court determined that a corporate counsel could represent the corporation in a lawsuit filed by a former director.  The court found that even though the corporate counsel had worked with the former director on several legal issues, there was no attorney-client relationship between the counsel and the former director and, thus, no conflict of interest.

But, the Board also noted an ethics opinion from the California bar cautioning that attorney-client relationships can be formed “intentionally or inadvertently with government officials if the attorney’s conduct and the circumstances create a reasonable expectation . . . that he or she enjoys a personal confidential relationship with the attorney.”  The appellant maintained that when Parham “was assigned to assist her in connection with the EEO investigations, he told her ‘that although the EEO case was technically against the SBA Administrator, that individuals are often accused and could be held liable for their actions, and that he was appointed to defend the  complaint against the agency and me. . . .’”  She also cited other evidence that Parham had led her to believe he was representing her.

The agency and Parham disputed the appellant’s version of events.  That’s not really important, at least to the case though I’m sure it is to Parham.  I wasn’t there, so I have no idea what may or may not have been said.  Here’s what is important and I’ve added the emphasis:

We find that the appellant reasonably believed that Parham was representing her interests in the EEO investigation. However, by the appellant's own account, Parham told her that he was appointed to defend the case against both the appellant and the agency, W-6 IAF, Tab 9 at 5 of 21, and that she needed to provide him with information to assist him in defending both her and the agency, id. at 8 of 21. There is no indication that the interests of the appellant and the agency with respect to the EEO investigations were ever at odds, and therefore Parham's representation of the agency's interests also served to protect the appellant's interests. Parham never told the appellant that he would protect her personal interests even if those interests were contrary to the interests of the agency. Yet the appellant seems to have concluded that Parham, an attorney employed by the agency, was representing her personal interests in other matters, even if those interests differed from those of the agency; she also seems to have concluded that information she provided to Parham while they were both performing their official duties as agency employees would be kept confidential from agency management. See id. at 7 of 21 ("I now know that [Parham] did not just keep the information to himself, he shared it with other General Counsel, Human Capital Management staff, and senior managers."). To the extent the appellant believed Parham would keep matters she shared with him confidential from their common employer, or that he would represent her interests against those of the agency, we find no reasonable basis for that belief. We therefore conclude that the appellant has not demonstrated that Parham's representation of the agency in this IRA appeal creates an impermissible conflict of interest.

I think I hear a Greyhound coming.  That’s right, managers.  That agency lawyer doesn’t represent you and so there’s no attorney-client privilege with respect to you.  That means the lawyer is free to disclose anything you say to agency management and, if it’s something not particularly good for your career, there is no prohibition against the agency using that information to your detriment.

Now, again I don’t pass judgment on what Parham said to the appellant because I don’t know what he said, but I do question a bit the Board’s judgment call on this one.  I suspect that a lot of managers in situations similar to the appellant had and do have a similar understanding of the arrangement.

There are at least two good lessons to be learned from this case.  First, if you are agency counsel, you need to be crystal clear on your relationship to the agency managers involved in cases.  Remember, these are laypersons in terms of the law and even a reasonably intelligent person may not fully understand the distinctions you’re trying to make between the agency’s interests and their interests.  In many, if not most, instances, those interests will be the same but it needs to be clear where your obligations lie if those interests diverge. [Wiley Note: Experienced agency counsel will provide the manager very early on a written document that explains in explicit detail the nature of the relationship.]

Second, as an agency manager, you need to understand that the agency’s lawyer is not your lawyer.  He or she is there for the benefit of the agency.  You see this “free representation” you’re getting first of all isn’t free-it costs the taxpayers money -- and second it’s not actually representation -- for you, at least.

Something to think about in light of the EEOC’s proposed revisions of Management Directive 110 that would permit agency defense counsel to assist managers in EEO counseling and investigations.

Who’s in Charge of This?
By William Wiley

Statistics are important in our lives. They help us make big decisions. For example, if you knew that only 70% of airplane flights landed safely, you might consider driving. Or, if you found out that only 70% of people who have a glass of wine with dinner live through the night, you might reconsider joining that Wine of the Month club. Or, if your car started only 70% of the time, you might conclude that you should take it in for some mechanical work.

In the mechanics of our business of federal employment law, there's a 70% figure that we should all be reconsidering. According to the latest statistical report published by the Merit Systems Protection Board, when an agency action is appealed to the Board and adjudicated by a judge, the agency is upheld in only 70% of the cases, see MSPB’s “Annual Performance Report for FY 2103.” In other words, three out of 10 times that an agency removes an employee, it screws up.

When you think about it, an agency’s success rate in removals should be just under 100%. That's because an agency should never fire someone who does not deserve to be fired, and it should always follow the proper procedures when doing so. And that ideal number is “just under” 100% because agencies should be expected to lose a few appeals due to a change in philosophy among new Board members or because a particular case is exploring the edge of the legal envelope relative to an untested area. But neither of these tweaks to perfection explains a loss of 30% of appeals.

Way back in 1991, I made this same point in an article I penned for a lesser newsletter. In that piece I lamented that the Civil Service Reform Act of 1978 had been in place for over 20 years, and agencies were still losing 30% of Board appeals. Two decades later and after tens of thousands of MSPB decisions explaining the law, that rate of success is still the same. Taxpayers should be furious that agencies cannot remove employees more fairly. Appellants who win their appeals should be doubly furious that their agencies did not know what they were doing when they implemented the removals 30% of the time. And we as agency employment law practitioners should be embarrassed that we are not doing a better job.

So is there anyone in a position to do something about this? Is there an entity within government that has the responsibility for helping agencies treat their employees fairly while holding their employees accountable for performance and conduct? 

Perhaps a trip back in history would shed some light on this problem. Way back in 1977, I was hired into a human resources position with Navy right out of grad school. And because I was a guy, I was assigned to labor and employee relations. You see, back then there was a belief that the ladies in the personnel business were too delicate and fragile to do LER work. The women for the most part worked in the brightly lit staffing office, and we guys worked in the darker realm of LER where we smoked cigars, cussed, and often didn't bathe because of the inherent dirtiness of dealing with unions and firing people.

Within just a few weeks of being assigned to LER, Navy shipped me off to DC so that I could participate in the weeklong LER academy hosted by the old Civil Service Commission. Back in the day, CSC ran the HR business in government. And the Commission had a rule that a newly-minted HR specialist (LER, staffing, classification, whatever) could not independently work or advise management until we had completed the academy program designed for our specialty. And “completion” meant passing the final exam, which more than one of my classmates did not.

So if you were an HR specialist in government 35 years ago, you knew what every other HR specialist in your field knew. You had all gone through the academy with the same instructors and the same course materials and the same common focus of learning how to do your work fairly and effectively.

Unfortunately, President Carter did away with that institution when his Civil Service Reform Act was passed. However, the responsibility for maintaining this focus on human resources coordination and excellence lives on, and is set forth in the mission statement of the US Office of Personnel Management:

The Office of Personnel Management's mission is to help agencies build an effective Federal civilian workforce based on merit system principles. OPM leads Federal agencies in the strategic management of their human resources, proposes and implements human resources management policy, and provides agencies with ongoing advice and technical assistance to implement these policies and initiatives.

So, OPM, what have you done for us lately? Where's the annual study of why agencies lose before the Board? Where are the suggestions for improvement? Why does not the field of human resources require a college degree? Where are the continuing education requirements? Why are there not guidelines for agency managers when it comes to selecting someone to represent the agency on appeal? 

Here is a sample of abysmal HR advice reported to me in just one week by frustrated supervisors:

“It takes a year to PIP an employee.”
“You are required to give the employee three days to work at home on her discrimination complaint, and she can use her government laptop while at home.”
“You cannot discipline an employee who yells at you and curses. He's in the union and entitled to engage in ‘robust debate.’”

Someone is to blame for this embarrassment. Someone just has to be in charge of helping the government do a better job of taking adverse and performance actions. Someone should be held accountable for this consistent, long-standing disservice to the American people and those who choose to work as its civil servants.

81 out of 100 is a B-, not an A
By Deborah Hopkins

As of May 8 at 9:16 p.m., I’ll be a rising 3L at the University of the District of Columbia - David A. Clarke School of Law. Yes, after final exams I will be past the halfway point (but remember, part-time law students have a 4L year too) and it feels so good! As a Type A law student, I prefer A grades. Law school has a way of making the student face academic mortality, weaknesses, and intellectual shortcomings, but we like those As. But, in some classes we are thrilled with Bs - or just to pass the class and be done with it. (I’m not going to mention any particular class, but it rhymes with “Montracts.”) There are some areas of life, though, were a B grade is just not good enough.

You probably know the Equal Pay Act of 1963, as amended, reads: “No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions…” 29 USC 206(d). 

This week, President Obama issued two executive orders that may impact the pay disparity among men and women who are contractors to the federal government. These executive orders will do two things: (1) Protect federal contractors’ rights to discuss their pay with their coworkers, and (2) Prohibit employers from retaliating against contractors who choose to discuss their pay with co-workers.

How does this impact the male-female pay disparity, you may wonder? After all, according to a recent report from the Department of Labor, in the U.S. women still only make 81 cents for every dollar males earn in equally situated positions. Yes, it’s 2014, and women have finally climbed to the lower 80th percentile and out of the upper 70th. (In case I wasn’t clear enough, that comment was intended to be sarcastic.) The main reason the administration thinks these executive orders will help change the pay disparity is transparency: when men disclose their salaries, women will know they’re earning less for equal work and then can take action to close the pay gap. As of now, there are no details on how exactly women are supposed to do that, but maybe this is progress? (Mild sarcasm intended here, too.) 

I should point out that the federal government pays women slightly better - 87 cents for every dollar men earn - yet women’s starting salaries are still ten percent lower than men’s starting salaries, according to a recent article posted on GovExec.com.

If you hadn’t heard, there’s also a bill on the way to the Senate, called the Paycheck Fairness Act, which intends in part to take this concept of salary transparency and apply it to the entire American workforce. I see a major problem here, though: most people don’t feel comfortable talking about how much money they make. Understandable. I fear that if they don’t talk about it, they won’t have enough information with which to take action. Federal employees are an anomaly, because their salaries are public information. Don’t believe me? Check out fedsdatacenter.com/federal-pay-rates/.

So, where do we go from here? Your guess is as good as ours. We’re soliciting ideas, so feel free to send them along. At any rate, we need to bump that B- up to an A!


April 2, 2014 FELTG Newsletter

I’ve always wanted to write fiction.  (I know.  There are a few of you folks out there who think that’s what I actually do.)  It’s why I became a writer in the first place.  And, I still daydream, some days more seriously than others, about returning to my first love.  (No, not my high school sweetheart.  I’m talking about fiction.)  Other days, I think there’s no way I can make up better stuff in my head than what’s actually happening.

Did you know there’s actually a study about peeing in pools?  The study appears in a recent issue of the American Chemical Society’s journal Environmental Science & Technology.  This, apparently, is really a problem because uric acid combines with chlorine and creates compounds that are associated with lung problems, as well as problems with the central nervous system and heart.  One of the compounds, cyanogen chloride, is considered a chemical warfare agent.  And, here’s the kicker.  Are you ready for this?  The authors of the study conclude that peeing in a pool is a “voluntary process” and “that swimmers can improve pool conditions by simply urinating where they're supposed to — in the bathrooms.”  We needed a study to come to that conclusion?

Learning all of this made me glad of two things.  First, that I retained virtually nothing from my high school chemistry class so that I can remain blissfully ignorant of the dangers around me.  Second, that I live by the ocean and, as a result, have no reason to swim in pools. 

Now, I’m sure all of you dedicated FELTG newsletter readers are wondering how I’m going to turn this into a segue to talk about our upcoming training programs.  To be honest, this could go several ways, most of which would not be good.  One thing we do have that’s good, though, is the chemistry between FELTG instructors and students.  (See, I got there, didn’t I?)  So, if you want to experience some chemistry of the nontoxic kind, here are some upcoming events.  There’s still space in next week’s EEOC Law Week, held in Washington, DC and starring me, Gary Gilbert, Deryn Sumner and a few special guest presenters. Plus, it’s not too early to start making plans to attend Legal Writing Week and Advanced Legal Writing Week, also planned for Washington, DC, in the coming weeks. We’re also branching outside DC by offering FLRA Law Week in San Francisco and Leave & Attendance Management and Performance Management in Norfolk, VA, both in July. Plus, we’ve got webinars and onsite trainings out the wazoo. Check out our website for all the info.

Now, onto our newsletter.  Read and enjoy.

EH

One Way the CRSA Dilutes Civil Rights Law
By Ernest Hadley

I started out in this business not long after the Civil Service Reform Act went into effect.  It was actually kind of fun.  There were all these new institutions like the Merit Systems Protection Board, the Office of Personnel Management and the Office of Special Counsel, and the Equal Employment Opportunity Commission got involved in federal sector discrimination law for the first time.  Case law was sparse or non-existent and what little case law existed was not systematically reported and passed more by word of mouth than any organized research.   (I know for you folks born after January 17, 1979 when the CSRA went into effect, and there are a lot of you these days, it’s hard to believe that there was a day when electronic databases didn’t exist and decisions were stored on microfiche.)  In many instances, the language of the statute and the legislative history was all we had to guide us.

I’m told that before this, back in the days when I was wasting my youth as a journalist, there was something called the Civil Service Commission.  My understanding is that it was sort of like Walmart in that it was one-stop shopping.  You could get anything from a loaf of bread to tires for your car to a new TV set.  (Of course, my understanding of Walmart is based on hearsay so maybe the analogy is a little off.)  If a federal employee had a problem, he or she went to the CSC.  Maybe it was a disciplinary action, maybe it was a discrimination complaint.  Didn’t matter, the employee went to the CSC.

Jimmy Carter, through Reorganization Plans Nos. 1 and 2 and later the CSRA, changed all that.  When the CSC was abolished, the MSPB took jurisdiction over removals, suspensions of greater than 14 days and demotions of most federal employees, and the EEOC took over responsibility to EEO complaints.  Congress, in its infinite wisdom, gave us the dreaded mixed case processing scenario for those actions that fell within MSPB jurisdiction but the employee claimed some form of civil rights discrimination.  I know, it seemed like a good idea at the time but so did Prohibition and we all know how that worked out.

So, what’s my point in all this?  I’m glad you asked, if only to remind me that I actually had one when I started writing this.  My point is that we ended up giving some folks whose background is not in discrimination law the responsibility of deciding whether discrimination occurred in the context of the more serious disciplinary actions.  That’s right.  Look at the backgrounds of the current Board members and what you won’t see is a lot of experience in discrimination employment law and that’s been the case historically.  Yet, these folks are continually called upon to decide discrimination claims.  It isn’t their fault that they have to grapple with difficult issues outside of their expertise, but is it any surprise then that the law gets muddled?

Here’s a recent example.  The appellant was a supervisory public safety dispatcher.  Among other things, he was required to possibly perform such duties as answering 911 calls and responding with appropriate personnel and equipment and to provide pre-arrival instructions to callers to keep folks alive until the medical personnel could get there.  The appellant had a stroke and, as a result, suffered a significant loss of the ability to speak.

The appellant informed the agency of his limitations and requested advanced leave during his recovery and placement in the leave donation program.  The agency asked for medical information and, in response, the appellant provided doctors’ reports, including one that noted the appellant’s speech difficulties and stated “Perhaps text to voice” software would be a possible accommodation.  The agency subsequently removed him for physical inability to perform his duties.

What then ensues is a chain of events, perhaps not unlike those that inspired Shakespeare to write “Twelfth Night.”  In other words, one misperception leads to another and another and general merriment ensues, as long as you’re not the poor appellant in this case.  Just as with “Twelfth Night,” the ultimate outcome may work but along the line a lot gets muddled that can confuse future cases.

The administrative judge assigned to the case reversed the removal and found that the agency failed to accommodate the appellant.  The Board’s decision doesn’t make clear how the judge got there, but I suspect it’s a bit like folks who come to Massachusetts and get caught going round and round on one of our rotaries.  Eventually, they take an exit but, more often than not, it’s the wrong one.

Here’s where things start to get muddled.  The Board says that in order to prove a physical inability to perform, the agency has to demonstrate that the appellant’s medical condition “prevents him from being able to safely and efficiently perform the core duties of his position.”  Citing a previous case, the Board goes on to clarify that by core duties, it means essential functions as defined at 29 CFR 1630.2(n)(1).

So, the first point is that if you mean essential functions why not say so instead of creating a new term—core duties?  Call me stupid, and many have, but why do we need two different terms for the same thing, particularly when one of those terms has a very specific meaning in disability discrimination law?  It simply creates confusion that we can all do without.

The Board goes on to sustain the charge of physical inability to perform and I don’t have a problem with that.  After all, when that big cardiac event comes, I’d like to know that whoever answers the 911 call can at least see that the ambulance gets to the right location.

But it then goes on to tackle the question of whether the agency failed to provide the appellant with reasonable accommodation and finds that the appellant failed to even request accommodation.   Excuse me, but the appellant submitted a doctor’s report that said he had difficulty speaking and maybe text to voice software could be used to resolve the problem.  Set aside whether you think that would be a reasonable accommodation in the circumstances, and I have serious doubts about that, because the Board found that there was no request for accommodation.  Sorry, that’s just not the law when it comes to the EEOC—the agency with primary jurisdiction over discrimination claims.  As those who have attended EEOC Law Week know, anyone can request accommodation on behalf of an employee, no magic words are required, and the only thing that needs to be done is to link a problem in the workplace to a medical condition, something the doctor’s note clearly does.  That, in turn, triggers the agency’s obligation to engage in the “interactive process” to determine if a reasonable accommodation is possible, even if it’s not the one requested by the employee.

Now we have Board case law that says a report from a doctor that identifies a medical condition, identifies a specific work limitation and suggests a possible solution is not a request for accommodation.  Presumably, agencies and Board judges will follow that case law and very likely, as a result, will find no failure to accommodate in cases where an accommodation was readily available without imposing an undue hardship on the basis that the employee was not specific enough in his or her request for accommodation. 

Sure, those employees can seek review of the Board’s discrimination findings by EEOC thanks to the mixed case processing scenario but we add another layer of review and appeals simply because the Board misinterprets and misapplies discrimination law—an area that by statute and experience is not its expertise.

The Board also found that even if the appellant had requested accommodation, the accommodation of last resort—reassignment to a vacant funded position—was not reasonable because the burden was on the appellant “of proving that there was a position the agency would have found and could have assigned him to if it had looked.”  Sorry again, but that’s not the correct standard.  The Commission’s standard is “Petitioner can establish this by producing evidence of particular vacancies; however, this is not the only way of meeting petitioner’s evidentiary burden. In the alternative, petitioner need only show that: (1) s/he was qualified to perform a job or jobs which existed at the agency, and (2) that there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period.” See, e.g., Miller v. Postmaster General, EEOC Petition No. 03A10099 (2002), citing Hampton v. Postmaster General, EEOC Appeal No. 01986308 (2002).  Yet, more muddled case law

Hey, we don’t call an electrician when the toilet backs up, and maybe we shouldn’t be calling on the Board to decide discrimination cases and the proof of that may well be Clemens v. Department of the Army, 2014 MSPB 14.

Wiley Note: Unrelated to Brother Hadley’s excellent assessment of the Board’s application (or misapplication) of disability law, this decision also draws a distinction I don’t remember seeing before. In our program on framing charges, part of our world-famous Absence & Medical Issues Week seminar next offered September 22-26 in Washington, DC, we explain in great detail how to remove an employee based on a charge of “Medical Inability to Perform,” sometimes characterized as “Physical Inability to Perform” if there is no mental component to the inability. That was the charge in this case and the Board properly identified the proof requirements necessary to support this charge:

• There is a nexus between the medical condition and observed deficiencies in performance or conduct, or
• There is a high probability that the medical condition may result in injury.

However, the judge had specified a different evidentiary burden for the agency:

• The disabling condition is disqualifying,
• Its recurrence cannot be ruled out, and
• A recurrence would pose a reasonable probability of substantial harm.

The Board noted that the AJ improperly applied the evidence burden necessary to support a charge of “physical inability to perform” when there are physical standards in place (e.g., they are contained in the position description or OPM has issued medical standards). As this case did not involve physical standards in a position description, but rather an ad hoc assessment of the “essential functions” of the position, the judge should have applied the former evidence burden, not the latter.

As if these medical issues were not complicated enough already. Now we have two different ways to analyze an agency’s proof burden in a removal for physical inability to perform, one for a case involving physical standards and a different one for cases in which there are no physical standards. And if you can explain why it should be this way, our operators are standing by.

By the way Ernie, thanks for the hint about not hiring an electrician to work on a backed up sewer. Now I know why my toilet glows in the dark.

Anonymous Complainants: There’s a Better Way
By Ernest Hadley

Everything has been a bit mysterious about the Commission’s shift last September to making all complainants anonymous in the decisions issued by the Office of Federal Operations.  Nothing on the Commission’s website, no mention of it in the proposed revisions to Management Directive 110.  Just silence.

Then recently, I was listening to recording of the Commission’s “brown bag” session on the proposed revisions to MD-110.  Dexter Brooks, Associate Director of the Office of Federal Operations, did the presentation and, in response to a question, he mentioned the Commission’s change of policy on case names and the fact that the decision had come down rather quickly and was not reflected in the proposed revisions.  He didn’t say who was responsible for the policy change, but he did shed some light on the reason for the change.

The change, according to Brooks, was intended to protect the privacy of some complainants, particularly those alleging disability discrimination who may not want their medical conditions disclosed.  That’s fine, I get it.   I also get that there may be complainants who are subject to particularly humiliating and embarrassing forms of harassment who may not want their identities disclosed. 

The problem isn’t the intent of the policy.  The problem is the manner is which the Commission chose to carry out that intent.  It’s like throwing out the baby with the bath water.  As anyone who’s ever tried it can tell you, it’s a perfectly fine way to get rid of dirty bath water until you consider the overall consequences.  As it turns out, preserving the overall health and safety of babies takes priority over conveniently getting rid of bath water.

The simple fact of the matter is that we have always, on a case-by-case basis, had a means for protecting the privacy rights of complainants when the public interest would not be served by disclosing their identities.

The courts have long used John and Jane Doe as plaintiff aliases in appropriate cases.  The MSPB has done so as well.  In fact, the Board has eliminated its use of gender in such cases and now uses John Doe as an appellant alias regardless of the appellant’s gender.  See Doe v. Pension Benefit Guarantee Corp., 117 MSPR 579 (2012).  In that case, the appellant was subjected to agency-ordered medical examinations because of her belief that the agency and her supervisors were monitoring virtually all of her activities.  The Board granted the appellant’s motion to proceed anonymously due to the sensitive nature of the medical information involved in the appeal.  The Board did deny her motion to seal the record in the case, noting that the case files are not accessible to the public through the Board’s website and, that under the Privacy Act, it could not release any of appellant’s medical records in response to a FOIA request without her permission.

It’s an imminently reasonable approach and the Board considers several factors in determining whether to allow an appellant to proceed as a John Doe.  Those factors, set out in Pinegar v. Federal Election Commission, 105 MSPR 677 (2007), include:

[W]hether identification creates a risk of retaliatory physical or mental harm, whether anonymity is necessary to preserve privacy in a matter of a sensitive and highly personal nature, or whether the anonymous party is compelled to admit his intention to engage in illegal acts, thereby risking criminal prosecution. . . The Board also considers whether anonymity is necessary to prevent a clearly unwarranted invasion of the privacy of a third party or whether anonymity is necessary to preserve the appellant’s physical safety. Other potentially relevant factors include whether the appellant requested anonymity at the commencement of the proceeding before the Board or immediately after the need for anonymity became apparent, and which party placed the sensitive matter in question at issue in the appeal.

Interestingly enough, the Board names everyone else involved in the Doe case, including the appellant’s supervisor, her doctors, and the agency’s doctors.

The Commission itself has used the very same mechanism for protecting the identity of complainants in appropriate situations.  For example, in Jane Doe v. Secretary of Army, EEOC Appeal No.  0120110125 (2013), the Commission dropped a footnote indicating that:

Complainant requested that her name, duty location and other personal information be kept anonymous due to a protective order issued on behalf of herself and minor child, by a State Circuit Court Judge. After a review of the evidence submitted in support of her request, as well as prior Commission decisions, we grant her request to remain anonymous. We note the agency was on notice of Complainant's request for anonymity during the pendency of the complaint process.

In many ways, equally as bad as the Commission’s decision to make all complainants anonymous is the surreptitious way in which it has done so with no pubic announcement of the policy, no attempt to seek agency or public input on the policy and no one actually stepping forward and taking responsibility for the decision.  Gee, if a decision is so bad that no one wants to own up to it, then perhaps it’s time to seriously rethink that decision.

The Commission’s policy with regard to the use of names in its decisions has always been a bad one.  The historic failure to use names of responding management officials and coworkers in decisions has led to decisions that are confusing as we try to keep track of who did what to whom without actually knowing who anyone is.

It also serves to protect those who engage in discrimination and retaliation.  That protection is particularly mystifying given that EEOC recently renewed its memorandum of understanding with the Office of Special Counsel to refer those found to have engaged in discrimination to OSC for possible disciplinary action.  The violations are sufficiently serious to refer to OSC, but not to disclose to the general public?  The policy even protects those who abuse the process by filing endless complaints without merit.  We no longer will know who they are--just another anonymous complainant.  That makes no sense.

There’s also the collateral effect it has on the ability of professionals in the field to intelligently and efficiently discuss the law.  As the questioner pointed out to Brooks we all know that when someone mentions Macy we’re talking about transgender discrimination.  That distinction disappears when we begin talking about the Complainant case. 

It’s time to stop throwing out the babies and adopt a sensible policy when it comes to names. 

Dietary Supplements
By William Wiley

The Chairman’s Chief Counsel at MSPB has a very important job. Of all the hard workers at the Board, it is the Chairman’s Chief Counsel who has the responsibility for keeping things moving. When a Petition for Review (PFR) challenging some judge’s decision is filed at Board HQ, it enters the system at the Office of the Clerk, then travels to the Office of Appeals Counsel (moving therein among writing attorneys, team leaders, and the Director’s office), finally up to the three separate offices of the Board members, and if all goes well, eventually back out to the Clerk for the issuance of a final Opinion and Order (O&O). On occasion, a PFR will even spend some time in the Office of General Counsel if there’s some unique legal issue that requires the attention of that group (or an attempt at settlement).

Each of these offices is headed up by a relatively independent member of the Senior Executive Service and at the Board level, by three absolutely independent Presidential appointees who have been confirmed into their independence by the Senate itself. From the point of entry to the point of issuance, there is a well-defined path that every PFR takes. However, there’s no automatic conveyor belt that drives the case from Point A to Point B. Given the independence of the various functions, especially within the confines of the office of a particular Board member, a case theoretically could sit for months (or years … don’t ask) untouched, unloved, and undeserving of such a delay in the receipt of justice. Yes, there are organizational time limits in place for processing appeals, but for many years there was no real mechanism in place for enforcing those standards. If a case grew old and went past the time limit, it would show up on a computerized report somewhere, but if the manager of the office where it sat didn’t bother to read the report (or didn’t really care), the PFR could sit without attention for a very long time.

Then, around 1997, the Chairman of the Board noticed that the average time for issuing a final O&O had creeped up to nearly 200 days. Deciding that this was not the best way to run an adjudicatory function, he directed his Chief Counsel (your most humble reporter herewith) to take charge of making sure that cases moved along through the adjudication process with reasonable dispatch.

The challenge to this responsibility was that no one responsible for moving cases along reported directly to the Chief Counsel. And although he might have some indirect authority over the career staff as he did work directly for the agency head, the staffs of the other two Board members recognized no such authority. Their independence was guaranteed by statute and part of that independence was taking their own sweet time in resolving the weighty matters that came before them.

Over time, the process of moving cases along became a mix of meetings, cajoling, and refocusing resources rather than simply ordering that things happen quicker. The Chief Counsel’s role could be analogized to the fiber in one’s diet. Not really any substantive nutritional value, but essential for moving things along though the parts of the process responsible for producing the end result. Nutritionists tells us that without fiber in a diet, the digestive tract does not work very well, things back up and begin to putrefy, and there’s going to be a whole lot of abdominal pain developing. You could say the same thing about PFRs that get stuck at Board headquarters. The longer they go unresolved, the worse the bellyaching by the litigants.

Well, the numbers speak for themselves. Between 1997 and 2001, by the time said humble reporter accepted his discontinued-service retirement and left MSPB, the processing time for PFRs had been cut in half, to just over 100 days on average. You still might not like what the Board had to say about your case, but by 2001, you got to know the answer a lot faster. Whatever Chief Dietary Fiber was doing, it must have worked.

Now we move forward a few years. Intake and budget at the Board remain constant, Chief Counsels come and go; and members are appointed, serve, then retire. All the while, PFRs come in and O&Os are issued, at the rate of a thousand or so every year. And although the PFR processing time creeps up a bit, it remains at a respectable rate: FY 07 = 132 days, FY 08 = 112 days, and FY 09 = 94 days (there were only two members in 2009; two vote faster than three).

In FY 10, the processing time jumped up to 134 days. But that increase is easy to explain. 2010 was the first full year that President Obama’s new appointees to the Board began to issue O&Os. With a new Chairman and a new Vice Chairman, you would expect that it would take a little time for the change in leadership and decision-making to settle in. So we should cut the Board a break for this year. Besides, even though 134 days is a big percentage increase from 94 days, it’s not too far out of line with historical numbers.

Then in FY 11, the processing rate jumps even more, this time to 213 days. Budget and intake remain about the same, but the delay in getting a PFR adjudicated through the Board has roughly doubled the processing times of the previous administration. The next couple of years are even worse: FY 12 = 245 days, FY 13 = 281 days. And the projection for FY 14? Your guess is as good as anyone’s. The furlough appeal PFRs will begin to hit Board HQ this year, and an extra 10,000 or so appeals will no doubt slow things down even more.

So what happened? Well, it’s hard for an outsider to tell. Although these figures are all reported in the recent “Annual Performance Report for FY 2103” issued by MSPB on March 10, this dramatic increase is not addressed nor explained in any fashion. It just sits there uncomfortably, kind of like a big heavy meal does when your digestion isn’t working so well. I could note that 2011 was the first full year that the Board changed its 30-year policy and began to issue non-precedential decisions thereby creating thousands of extra pages of legal work for itself. But as I have been openly critical of non-precedential decisions in the past, it would be self-serving and beneath me to bring it up again. So I won’t.

OK, at least not very much.

One of my name sakes, William Gladstone (frankly, I wish Mom had named me “Gladstone Wiley”), once said, “Justice delayed is justice denied.” Perhaps the delay in adjudicating PFRs is warranted. Perhaps the value of non-precedential decisions (if they are indeed the cause of the increased delay) is worth the expense of doubling the time it takes to resolve a PFR. But without an analysis by those within the Board as to the cause of the delay, the public is without access to the policy decisions that have caused this increase.

Geez, if there was just some oversight of the Board’s functioning, some congress of individuals – perhaps members of some august governmental body - who could take an in-depth look into why this delay in PFR processing has occurred. But try as I might, I just can’t think who that committee might be.

All I can think about is roughage.

[Editor’s Note:  From now on, Bill, I will gladly call you Gladstone.  Would that be Stoney, for short?]

Religious Garb and Grooming in the Workplace: A New Factsheet
By Ernest Hadley

I’m sure that we’ve all had this experience.  You get someone’s voice mail and after the obligatory, if not entirely genuine, admonition to leave your name and number and that person will get back to you as soon as possible, the message ends with something like “have a blessed day.”  Does that message violate Title VII by leaving an impression that the employer, i.e., the agency is endorsing some religions to the exclusion of others?  Would it violate Title VII if the agency issued an order to employees not to use such a message?

It’s a common enough experience that when I saw the EEOC had posted a new factsheet entitled “Religious Garb and Grooming in the Workplace” on its website I hoped that maybe I would finally get a definitive answer to those questions.  Well, as it turns out, the factsheet doesn’t cover that specific scenario, but it does contain a lot of good information, backed by examples, on the dos and don’ts of religious garb and grooming in the workplace.

As Gary Gilbert and I discuss during EEOC Law Week, this can be a difficult and confusing area.  One reason for both the difficulty and confusion is that we not only need to concern ourselves with the Title VII prohibition on religious discrimination, but the First Amendment as well.  Of course, the EEOC has no jurisdiction over First Amendment claims, but we still need to know what the First Amendment allows and prohibits to avoid violating an employee’s constitutional rights or, for that matter, to avoid infringing on the rights of the public in general, one of which is to be free from any government endorsement of religion.  And, to complicate matters just a bit more, back in the Clinton years, the White House issued its Guidelines of Religious Exercise and Religious Expression in the Workplace.  Again, not something EEOC enforces but nonetheless another piece of the puzzle.

Here’s a sampling of what’s contained in the new factsheet that is available at http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm.

An area that can and does cause problems is when an employee adopts new religious beliefs or engages in a religious practice only at certain times but not others.  That can cause an employer to doubt the sincerity of the employee’s belief, yet questioning that sincerity can be a slippery slope that leads to a violation of Title VII.  The employer can question the sincerity of the belief but only if it has “a legitimate reason” for doing so and it requests only that information “reasonably needed to evaluate the request.”  The Commission then gives two examples:

EXAMPLE 1:
New Observance

Eli has been working at the Burger Hut for two years. While in the past he has always worn his hair short, he has recently let it grow longer. When his manager advises him that the company has a policy requiring male employees to wear their hair short, Eli explains that he is a newly practicing Nazirite and now adheres to religious beliefs that include not cutting his hair. Eli's observance can be sincerely held even though it is recently adopted.

EXAMPLE 2:
Observance That Only Occurs at Certain Times or Irregularly

Afizah is a Muslim woman who has been employed as a bank teller at the ABC Savings & Loan for six months. The bank has a dress code prohibiting tellers from wearing any head coverings. Although Afizah has not previously worn a religious headscarf to work at the bank, her personal religious practice has been to do so during Ramadan, the month of fasting that falls during the ninth month of the Islamic calendar. The fact that Afizah adheres to the practice only at certain times of the year does not mean that her belief is insincere.

The factsheet also emphasizes the difference between “undue hardship” as a defense in ADA cases and “undue hardship” when it comes to religious accommodation.  While undue hardship in ADA cases is intended to be a rigorous standard for agencies to meet, not so under the religious accommodation provisions of Title VII.  “For purposes of religious accommodation, undue hardship is defined by courts as a ‘more than de minimis’ cost or burden on the operation of the employer's business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship.”

Although applicable to the federal sector, much of the guidance in the factsheet is geared toward the private sector where employers are more likely to base grooming and dress standards on customer preference, something that is not permissible under Title VII.  Still, two examples do feature a public employee and the issue of display of religious beliefs:

EXAMPLE 12:
Public Employee

Elizabeth, a librarian at a public library, wears a cross as part of her Catholic religious beliefs. In addition, after church services she attends on Ash Wednesday each year, Elizabeth arrives at work with a black ash mark on her forehead in the shape of a cross, which she leaves on until it wears off. Her new supervisor directs her not to wear the cross in the future while on duty, and to wash off the ash mark before reporting to work. Because Elizabeth's duties require her to interact with the public as a government employee, the supervisor fears that her cross and ash mark could be mistaken as government endorsement of religion in violation of the Establishment Clause of the First Amendment to the U.S. Constitution. He cites the need to avoid any appearance of religious favoritism by government employees interacting with the public, and emphasizes that librarians must be viewed as impartial with respect to any information requests from library patrons. However, because the librarian's cross and ash mark are clearly personal in this situation, they would not cause a perception of government endorsement of religion. Accordingly, accommodating Elizabeth's religious practice is not an undue hardship under Title VII.

EXAMPLE 13:
Public Employee

Gloria, a newly hired municipal bus driver, was terminated when she advised her supervisor during new-employee orientation that due to the tenets of her faith (Apostolic Pentecostal), she needs to wear a skirt rather than the pants required by the transit agency dress code. Absent evidence that the type of skirt Gloria must wear would pose an actual safety hazard, no undue hardship would have been posed by allowing this dress code exception, and Gloria's termination would violate Title VII.

The latter example brings to mind a case decided by the Commission several years ago—Brown v. Postmaster General, EEOC Appeal No. 01A50280 (2005).  Mr. Brown—yes, in those days, the Commission still used complainant’s names—charged that the agency denied him religious accommodation when it refused to allow him to wear a kufi—a brimless cap.  Although the kufi does have some religious significance, its wearing is not required.  The agency argued that it was not required to accommodate Mr. Brown because wearing the kufi was not a fundamental tenet of his religion.  On appeal, the Commission found that Mr. Brown had a personal bona fide religious belief that wearing the kufi was following the ways of the prophet Mohammad and that the agency had not demonstrated that allowing him to wear the kufi would be an undue hardship.

The guidance is well worth checking out and if you want to know more about religious accommodation, perhaps you can join us for EEOC Law Week.

Oh, Those Pesky Doctor’s Notes
By William Wiley

Back in the day when I took the bar exam, a newly-added section intended to reduce recent controversy was something called the “in-basket component.” This part of the exam was supposed to test the applicant similar to the real-life experience of being a lawyer rather than the intellectual regurgitation of arcane (and often Latinized) legal concepts. Instead of answering a bunch of multi-choice hypothetical questions or drafting an essay, the test-taker was confronted with several pieces of paper supposedly similar to what would be encountered in the real world beyond law school: a partner’s memo, a demand letter, a newspaper article relative to a client … typical of the sort of documents a lawyer might find in her in-box. Then, the applicant was tested on her ability to proceed from that point, to know what issues were important, and what steps to take next.

So this is your FELTG in-basket pop quiz for today.  You get to work one morning, and below is what you – Al Advisor - find in your in-box. What are the alarm bells that should ring in that employment law head of yours and what issues would require further action on your part?

Email

From: Sue Supervisor
To: Al Advisor
Subj: Larry Loser

Al, you’ve got to help me. You know that I’ve been trying to get Larry to do his job. Well, now he’s told me that he is disabled and demands reasonable accommodation. Please check out the two attachments and tell me what I can do with this guy.  – Sue

Note from Doctor

Dear Sue Supervisor, Larry Loser is my patient. I have evaluated him and determined that he is entitled to reasonable accommodation of his disability. I have forwarded the details of my findings to Dr. Oscar Harper, your agency’s occupational health officer in conformance with EEOC regulations regarding the limited right of supervisors to see medical information relative to employees. Cordially, Mary Doctor, MD

Memo from Occupational Health

To Whom It May Concern. I have reviewed the medical information submitted by Dr. Doctor. She has concluded that Larry Loser suffers from a medical condition that is exacerbated by his exposure to certain triggers in the workplace, and recommends that he telework at least two days a week to reduce his exposure to these triggers. I concur. [Signed] Oscar Harper, MD, Occupational Health Officer

STOP. YOUR ANSWER GOES HERE. Be sure to think it through before you read the Wiley answer below.

Wiley Answer

Issue 1: This employee may not be entitled to accommodation because he may not be disabled. I know, I know. The Americans with Disabilities Act Amendments Act (ADAAA) reduces the focus on whether a person is disabled and shifts it more toward whether there is a reasonable accommodation. As EEOC says, “In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.” However, this doesn’t mean that you necessarily abandon the analysis altogether, taking the employee’s claim that he is “disabled” as binding on you. A determination is still warranted as to whether the employee’s medical condition meets the definition of “disabled” under law, although that analysis should be less than previous to the ADAAA. EEOC concedes that “not every impairment will constitute a disability.” And the statutory definition remains as it has been for 40 years: “A physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having a disability.” See EEOC’s language at http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm.

Pre-ADAAA case law holds that an employee does not meet the definition of “disabled” unless his medical condition prevents him from performing in a category of positions; that an individual who cannot perform in a particular position (e.g., his current supervisor drives him into deep depression, although no other supervisor has the same effect) does not meet the legal definition of disabled. I can find no guidance from EEOC nor case law that changes that. Therefore, more investigation into the nature of the disability is warranted. And that means as the employment law advisor in this case, you need to get more information from Dr. Harper because he is not an expert in disability law – you are.

Issue 2:  Assume the employee’s medical condition indeed does meet the ADA definition of a disability. That does not mean that you have to provide the accommodation specified by his physician for two reasons:

a. The doctor’s note does not explain how teleworking will necessarily allow Larry to do his work at home. Will these problematic “triggers” not be present in the home office? Why two days instead of one? The agency can require the employee to produce documentation that explains how the suggested accommodation would allow the employee to perform, not just provide a physician’s unsupported conclusion as to what accommodation the agency should come up with.

b.  Assuming that working at home does indeed reduce the employee’s exposure to workplace triggers (e.g., it bothers him to the point of triggering depression that the door to his office is painted yellow), there may be accommodations other than teleworking that also would effectively reduce his exposure to triggers (e.g., paint the door red). As EEOC says, “If more than one accommodation works, the employer (that’s you, Al) may choose which one to provide.” http://www.eeoc.gov/laws/types/disability.cfm.

So there you have it. Give yourself two points if you got both issues. Now you need only 98 more points to be able to say that you deserve to call yourself an employment law advisor. And we dole out points in buckets to those who attend our week-long open-enrollment seminars, so you’d better get busy signing up.

By the way, in all seriousness (and we so do hate to be serious), FELTG has proposed to OPM that it establish a recognized training program for employment law practitioners, that it require completion of the program to be certified as an employment law practitioner, and that to maintain the certification, individuals would need to engage in continuing education in the area of federal employment law. This field is too important to our great country to leave its practice to guys like me who learned everything by making all the mistakes along the way. As the field stands now, even though most states require hairdressers and barbers to be certified, in employment law if you want to be a practitioner, you just raise your hand and say you are one; not even a high school diploma is required. We think most Americans would agree that there should be some minimum standard of professionalism in the business of protecting civil service rights while running and efficient and effective government. We are at least as important to our country as are those hairdressers.

A True Daily-Double, Alex
By William Wiley

Those of you who have watched that great long-running game show Jeopardy are familiar with the term “true daily-double.” That’s when a contestant decides to take advantage of the rare chance to bet the bank on just one question. Or, to be more precise, on just one answer because in true Jeopardy form, Alex will give the answer and the contestant has to come up with a question. It takes some really big brain-lobes to go all-in on a true daily-double.

A situation in our business that should not take really big brain-lobes is deciding when a prior act of correction can be considered as a prior act of “discipline” for the purpose of applying the principle of progressive discipline to justify an increased penalty. For the most part, ours is a three-strikes business. Every table of offenses and penalties in government that I’ve seen stops at the third offense. So it’s super-important to know what counts as offenses so you can crank that fact into the penalty assessment at Douglas factor numbers 3 and 7.

There are two sorts of situations in which identifying prior discipline can be a problem:

1.  Discipline was defined for us in the earliest days of MSPB law in Bolling v. Air Force, 9 MSPR 335 (1981). In that decision we learned that for an action to count as prior discipline for the purpose of progressive discipline, the action must meet three criteria.  It must be:

A. In writing,
B. In the official personnel file, and
C. Grievable.

We know that there are three actions that meet these criteria:

A. Reprimand
B. Suspension
C. Demotion (very rarely used)

The problem comes in when some agencies create other sorts of corrective actions that are not one of these three, and then try to treat them as prior discipline.  Some examples of what I’ve seen over the years include:

A. Letters of Warning
B. Letters of Caution
C. Written Counselings
D. Letters of Expectation
E. Letters of Admonishment

These actions routinely fail to count as discipline because they are not grievable or because they are not retained in the OPF. So unless the agency has especially constructed one of these actions to conform to the Bolling criteria, it cannot be considered as a prior act of discipline for progressive discipline purposes. And those of you who have attended one of our seminars on employee accountability or MSPB law know that we jump up and down and shoot flames out of our noses trying to get folks to understand that if an action does not count as discipline, it should not be taken (if you need to know why, come to our next session on accountability, Supervisory HR Skills Week, June 16-20 in Washington, DC; nose-flames guaranteed). 

2.  The second situation that causes a prior-discipline problem is a bit more nuanced. Amazingly, I had three clients in the same week run into this problem. It can come at you in a couple of different forms. First is the guy who during the notice period for a proposed suspension engages in yet another act of misconduct before the decision is issued on the proposal and the suspension served. Alternatively, is the situation in which the agency implements an act of discipline – reprimand or suspension – for misconduct that occurred this month, and then comes to find out about misconduct that occurred a couple of months before for which discipline is warranted. In both situations what you have is discipline of record that predates the proposed discipline for the more recent acts of misconduct. However, you cannot count these prior acts of discipline toward progressive discipline for the same reason: the discipline being proposed today is based on misconduct that pre-dates the punishment for the other discipline.

The principle in this situation comes right out of behavioral psychology: a) the animal (human, dog, whatever) engages in misconduct; b) you punish the animal (provide “negative reinforcement” if you prefer) so that the animal associates the pain of punishment with the misconduct; and c) the animal thereby learns to avoid that particular misconduct because he wants to avoid the pain. (Thanks to Drs. Pavlov and Skinner for this understanding of how life usually works.)

This fundamental principle of psychology is embodied in the concept of progressive discipline. We use it as a favor to the employee to help him understand that if he continues to engage in misconduct, he will continue to suffer negative reinforcement, hoping that thereby the employee will forego future misconduct. With this understanding you can see why in our hypothetical situation here, you cannot count the previous discipline as a “prior” for the purpose of progressive discipline. The previous discipline does not have the ability to serve as a motivator relative to the discipline you are about to administer because it did not occur before the misconduct that is the basis for the currently proposed discipline. As the Board has said, the employee must be given a chance to learn from prior discipline for it to be progressive. Fowler v. United States Postal Service, 77 MSPR 8 (1997).

Contestant: I’ll take federal employment law for $2000, Alex.
Alex:    And the answer is, “Not understanding what counts as a prior act of   discipline.”
Contestant:  “What’s the outcome for an employment law practitioner who does not attend FELTG training?”
Alex: Correct!

Have Your Ever Put an Orange Rind in Your Pudding?
By Deborah Hopkins

Today, I’d like to tell you a story, adapted from one told by Stephen B. Cohen and repeated countless times by law school professors worldwide.

Somewhere in America, there are two sisters (Sister A and Sister B). As sisters often do, these two start fighting over something rather silly: a lonely orange sitting on the refrigerator shelf. Each sister vehemently believes she must have the entire orange. A parent privately asks each sister why she wants the orange, and learns some valuable information: Sister A wants to use the orange so she can drink the juice, and Sister B wants to use the orange rind to cook a pudding. What each sister wants is what we refer to as her position; why she wants it is called her interest. The simple solution in this scenario is to give Sister B the orange rind after Sister A squeezes the juice. In this way, it’s possible to forego individual positions and still meet the interests of both.

These concepts of interest-based dispute resolution traverse the spectrum of humankind, far beyond orange juice and pudding. And in the past several weeks, we at FELTG have seen an increase in requests for training on Alternative Dispute Resolution. Why? Well, I have a few theories. Maybe our customers are bored with the stuff we usually teach. Maybe ADR is the new workplace trend for 2014. (Can’t you just see this on a t-shirt: “ADR - it’s the new black”?) Maybe someone somewhere heard about how good Ernie is at negotiation strategy, and that person spread the word throughout the intra-agency tabloids. Or, maybe people are just interested in learning more about alternative methods to settle disputes between parties in the federal workplace. Whatever the reasons, we’re happy to talk about federal sector ADR and how it applies to you and your agency.

There isn't time or space to dive in to every detail, so today we’re going to focus on two things: situations in which an agency might offer ADR, and circumstances in which ADR might be most effective.

When might an agency offer Alternative Dispute Resolution?

Agency ADR programs vary as much as agencies themselves vary. ADR programs will be distinct based upon the agency environment, schematics, mission, and workforce composition. An agency with 50 employees will differ greatly from an agency with 50,000, so ADR policies and practices must be flexible enough to suit the specific agency’s needs and characteristics.

When it comes to EEO, an agency might offer ADR very early on, perhaps as soon as the pre-complaint phase. Or, maybe the agency will wait until after a formal complaint has been filed to implement ADR. The decision is often left to the sole discretion of the agency decisionmakers. (Keep in mind that if you have a union, ADR policies within the collective bargaining agreements must be considered.) In both EEO and MSPB cases, the agency may choose to use ADR on a case-by-case basis, and only attempt to implement ADR in situations which appear to lend themselves to successful resolution. Other agencies require ADR be implemented on certain issues across the board. Bottom line: check with your agency and work within (or expand) the parameters set forth.

When is ADR most effective?

There’s no exact science to it, but ADR can be particularly effective in situations including:

• When time is an important consideration. Litigation is usually a lengthy process, particularly at the EEOC, so ADR may be a successful means to quickly resolve a time-sensitive dispute.

• When the parties involved want to have a voice in the outcome of the dispute, and have a personal stake working toward a resolution, rather than having a third party make the decision on the outcome.

• When there is a need for parties to work together. For disputing parties who share the same workspace, litigation can cause inordinate amounts of stress and frustration. A successful ADR session will end when both parties walk away feeling understood and satisfied with the resolution. For coworkers or supervisors/subordinates, this level of agreement eases the transition back into the shared workplace far better than litigation would.

• When the issues in dispute do not involve serious misconduct or criminal activity. For less sensitive disputes, ADR often will resolve the problem without making it a bigger deal than it actually is. I’d venture to say that most issues in the federal workplace do not rise to the level of serious misconduct or criminal activity, making the atmosphere ripe for successful ADR.

Next time, we’ll discuss various methods of ADR and when they’re most useful. Most of our readers are familiar with mediation, but are you familiar with of any of the below? If not, stay tuned!

• Early Intervention
• Team Conflict Resolution
• Conflict Management Training
• Conflict Coaching
• Facilitation
• Conciliation
• Leadership Transition

March 19, 2014 FELTG Newsletter

Did you realize that Monday was a holiday?  No, not St. Patrick’s Day, but Evacuation Day.  By mere coincidence I’m sure, Boston and some of its surrounding towns celebrate the day the British troops finally left the city following the Siege of Boston early in the Revolutionary War.  State offices in Suffolk County are closed, green beer flows, and a parade that bans gays from marching is held in South Boston.  What better way to celebrate part of our independence, right?

It even resulted in a Supreme Court decision, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1996), upholding the right of parade organizers to exclude groups whose message was contrary to their beliefs.  Of course, what else would you expect from a group whose leader is John “Wacko” Hurley.   Come to think of it, maybe that’s why the British decided to leave Boston in the first place.

 We don’t want to leave you behind, so now’s the time to register for one of FELTG’s upcoming courses or webinars. There are plenty of HRCI and CLE credits to be had at EEOC Law Week, April 7 - 11 in Washington, DC. Plus, other upcoming programs (also approved for HRCI and CLEs) include Legal Writing Week (May 5-9 in Washington, DC) and FLRA Law Week (July 21-15 in San Francisco). Or - because it will probably continue to snow in the great northeast for the next three months, based on the winter we’ve had so far - stay in your office and attend one of our upcoming webinars. Topics on the docket include disciplinary documents, case law updates, and whistleblower reprisal.

And for now, let’s get to the news, FELTG-style. Read and enjoy.

EH

EEO: Will Agency Heads Comply?
By Ernest Hadley

Hey, I’ve got three kids.  I’m quite used to the fact that nobody listens to me. Sometimes, our dog, Emma, listens to me, but I think that’s mostly in hopes that her attention will result in a biscuit.  So, I’m sort of surprised in looking at the proposed revisions to Management Directive 110 to see an entire section on “Program Review Procedures for Compliance.”

Why would that surprise me? Because several years ago, more years than I can remember, I was asked to testify at an EEOC public hearing on the timeliness and quality of investigations and the potential conflict on an agency investigating itself.  If memory serves me right, and there’s no guarantee of that, this was back in the days when Naomi Earp was EEOC Chair.

What I do remember, and this part I am certain of, is that part of my testimony centered on the dismal reality that several years after MD-110 required that EEO directors be in a direct report to the agency head, there was consistently between a third and a quarter of agencies that were in noncompliance with the requirement.  I raised this point because of a silly notion I have that compliance with the nation’s civil rights laws has to come from the top down and not the bottom up.  If agency heads could blow off without repercussion the simple requirement of having the EEO director report directly to them, what did that say about their overall commitment to EEO?  Several terms come to mind, but the only one likely to make it through your spam filters is doodley-squat.  That’s a legal term that means, well, you probably get the idea.

Now, I still do not suffer under the illusion that anyone’s listening to what I say, but in conjunction with its changes to 29 CFR 1614.102(e) last year, the proposed Management Directive sets out procedures for compliance reviews of agency EEO programs and notices of noncompliance.  So, here are a few of the highlights.

First, the proposed MD-110 states that agency programs will be reviewed for compliance with EEOC rules, regulations, orders, management directives and bulletins and other instructions issued by the Commission.  A review can result from one or more of several sources including:

• Monitoring agency submissions including complaint files, plans and reports;
• Monitoring correspondence and news media for reports of agency action or inaction;
• Requesting information directly from the agency; and
• Onsite visits or virtual conferences.

When the Commission finds noncompliance, the proposed directive calls for EEOC to notify, in writing, the EEO director or responsible program manager.  Notice will need to include the requirement that is noncompliant and the source of the requirement; how the EEOC became aware of noncompliance; how the agency is not in compliance; a period of time to cure the noncompliance with recommended actions; and a time period for coming into compliance of justify its noncompliance.

Now, here’s a part that confuses me a bit.  The next section says that the EEOC Chair may issue a notice to an agency head if the agency does not respond or fails to be responsive to the initial notice.  The italics are mine and I’m simply confused as to why the Chair should have any discretion here.  I mean, the agency has already been sent on noncompliance notice and either hasn’t responded or failed to respond in a satisfactory manner.  It seems to me that, at that point, the noncompliance notice to the agency head should be mandatory.  Maybe will is what the Commission means but, if so, it should say that.

I say maybe that’s what the Commission means because the next step is mandatory, something which is not clear from the regulations.   The next step is that if the Director of Federal Operations believes the response of the agency head is not a good faith and timely effort to bring the agency EEO program into compliance, the Chair “will publically identify the non-compliant agency and the factual basis surrounding the non-compliance.”

Again, the italics are mine and I put them there because the regulation uses the word may in referring to publically identifying the noncompliant agency.  The use of the word may in that context was something I wrote a piece about when the regulation first came out, not that the good folks who put together the proposed revisions of MD-110 read what I write.  The only folks I know for sure read what I write is the FELTG staff and that’s because I require them to read my articles in the hope that it will keep us all out of a defamation suit.

Whether this non-compliance notice system works remains to be seen.  If you have thoughts on this or any other part of the MD-110 proposed revisions, you have until April 25 to get your comments to EEOC. 
 
Checklists Rule
By William Wiley

It started way back in the late 90s. Kaiser Health Care was trying to get a handle on post-surgery infections; an adverse medical outcome that most research said was completely within the control of those in the surgery suite performing the surgery. In other words, somebody messed up if there was a post-surgery infection, and the chances were really good that it was a professional on the surgery team who should have known better.

To try to get a handle on things, Kaiser implemented a very simple approach. Prior to beginning a surgical procedure, the surgery suite manager was required to go through a checklist of things that are supposed to be done routinely: e.g., close the door, know everyone in the room, make sure everyone is masked.

Reportedly, the members of the surgery teams were not impressed initially with the checklist requirements. Hey, they were professionals; they knew how to perform surgery both properly and in a sterile environment. They didn't need to be reminded of all this basic stuff. Some reasoned that Kaiser management was a bunch of cheapskates more willing to spend money on paper and pencil than on sophisticated equipment and more personnel. They did it; dutifully checking off little boxes before every procedure for a year, noting that they had indeed done each of the steps necessary to get the job done right, but they didn’t like it.

Well, guess what. After a year, the rate of post-surgical infections had dropped 35%. And another year later, it was down another 10%. Yes, just making sure that the basics were done right every time by everybody without having to think about it made a huge difference in reducing mistakes.

In our FELTG program for supervisors in which we teach how to hold employees accountable for performance and conduct, we provide participants a checklist to use to decide what tools to use for accountability and how to put those tools into play. We've gotten good feedback that the attendees appreciate the simplicity and the overview, even though they realize that there's a fair amount of fleshing out to do to fully implement a disciplinary action or performance removal.

Out here in California, a group of public defenders recently decided to put checklists to work in that field. They've formed a committee to come up with checklists of a dozen or so steps that routinely need to be clicked off when defending some poor soul in a criminal action. Oh, you still need to be a lawyer to do it right, but you won't miss any basic steps along the way that might otherwise sink a case.

So. Where are your check lists? You're a supervisory Employee Relations Specialist. Or a reviewing agency legal counsel. Or some high paid dude at headquarters who has broad policy responsibilities over a large federal agency. Sure, you get to review the work of those frontline folks who are doing the work. It's relatively easy to criticize the work of lessers if you have more experience or authority. "Well, Bill, I'd like to approve this proposed removal letter. But you forgot to include a copy of the prior disciplinary letters. HA, HA, HA! Once more, I establish that I am superior to you."  

Well, if you’re so gosh darned superior, why not take that superiority and develop several employment law checklists for practitioners in your agency (or union) to use when putting together an action? If you were to do that, not only would you be developing a good working tool to help agency representatives not to make a mistake, but I bet you’d be bringing your best minds together in a joint effort to decide the proper way to do something, thereby increasing the chances that you will do it right.

If I were sitting in an agency’s big policy chair or was the head of a large employee relations or employment law function (and trust me; they won’t let me sit in ANY chair anymore), I might start out with a How to Do a PIP checklist something like this:

  •  The employee has a performance plan.
  •  The performance plan has elements labeled as “critical.”
  •  The employee has been on the plan at least 60 days.
  •  The supervisor has written a one-page narrative statement as to why he has concluded the employee is performing at the Unacceptable level on at least one critical element.
  •  The supervisor has identified which critical elements are being performed unacceptably.
  •  The supervisor has identified assignments to be completed during the first week of the PIP related to each failed critical element.
  •  The supervisor has considered establishing longer-term assignments to be completed by the end of the PIP.
  •  The supervisor has selected a day, time, and place for weekly feedback meetings with the employee.
  •  The practitioner has briefed the supervisor on how to conduct and document the weekly feedback meetings.
  •  Etc.

What a simply great tool, not only for providing guidance, but also for holding your own staff accountable for doing it right. In our FELTG training we sometimes use a quote attributed to Leonardo Di Vinci and purloined by a young Steve Jobs: Simplicity is the ultimate sophistication. You can’t get much more sophisticated than an employment law checklist.

It’s All About Intent
By Ernest Hadley

Lots of things happen in life that are unfair.  Some of them even happen in the workplace.  Discrimination by definition is unfair but not all unfair things are discrimination. It’s a point that is sometimes lost on EEO complainants and it’s one of the things that distinguish cases decided by the EEOC from those decided by the MSPB.  The MSPB has far more in the way of weapons, if you will, to get at unfair treatment, regardless of the motivation for that treatment.  At the EEOC, it's all about the motivation for the treatment.

Let’s look at a recent EEOC decision that I think illustrates the point well.  The complainant was an African-American mail processing clerk working on Tour I.  He was told by a supervisor to perform some specific work tasks.  The complainant refused to perform the work because another supervisor had told a Caucasian employee on Tour III to perform the work. The complainant believed his own supervisor was afraid to tell Caucasian employees on Tour III to perform their duties and that the Tour III employees regularly left work for the Tour I employees to do.  As a result of his refusal, the complainant was suspended for 14 days and filed an EEO complaint alleging race, disability and age discrimination.

Ok, maybe it is unfair that the complainant had to do work because somebody on another shift didn’t pull his or her weight.   Indeed, in Complainant v. Postmaster General, No. 0120120347 (February 7, 2014), the Commission seems to have accepted that premise noting that “it is evident that Complainant, a Tour I Mail Processing Clerk, was not at fault for the fact that a Tour III employee had not completed his assignment.”  None of which helped the complainant who failed to establish a prima facie case or present any evidence of pretext.

Here’s where the complainant began to run into problems.  The administrative judge found that the complainant didn’t establish a prima facie case because the Caucasian employee was not similarly situated to be a comparison employee because he had a different supervisor.  Now, in the EEOC’s decision, it simply assumed there was a prima facie case and addressed the issues of a legitimate nondiscriminatory reason -- i.e., the employee didn’t do what he was told to do -- and the lack of any evidence of pretext. But, under EEO law, the judge is absolutely right because the only thing we’re concerned with here is the motivation of the complainant’s supervisor in suspending him for 14 days.  In the absence of any other evidence, the mere fact that one supervisor dealt with a situation one way and another supervisory chose a different course says nothing about the motivation of either supervisor.  For all we know, one supervisor may simply be more lenient than the other.

Things may have worked out very different if this was an MSPB case.  The MSPB is concerned with consistency of penalty as an aspect of determining whether a particular penalty is reasonable for a given offense. 

Now, I know that every time I even mention penalty disparities I run the risk of sending Brother Bill into apoplexy.  Truth be known, sometimes I do it just to watch, but that’s not the case here and if he goes into apoplexy, it will simply be collateral damage.  Unless it’s relevant to an affirmative defense raised by the employee, the Board isn’t concerned with the motivation behind any disparity in penalty.  The disparity in any penalty is just one factor the Board looks at in its Douglas analysis to determine if the penalty is beyond the bounds of reasonableness.  If, in the Board’s opinion it is, then it can mitigate the penalty.

You can agree with what the current MSPB members are doing with respect to what constitutes comparable employees and comparable offenses or you can disagree.  It doesn't matter.  That doesn’t change the fact that, unlike the EEOC, the MSPB is doing something that far more resembles looking at fairness.

Here’s an example.  An agency could, though I’m not particularly recommending it, establish a policy where it only disciplines every other employee who commits a particular offense.  The policy would have some pretty unfair results.  But, in terms of EEOC, as long as the agency adheres to the policy, it’s A-OK.  As random as the policy may be, there’s no discrimination and, as a result, nothing that EEOC can remedy.

Try invoking that policy before the MSPB and I suspect that even Member Robbins, who takes a more conservative view of similarly situated employees and comparable offenses than his colleagues, would have a problem with it.  Heck, even Bill would have a problem with it because he’d want to fire them all.

Here’s what the Commission concluded its decision.  “The workplace disagreement that occurred here may indeed have been avoided had the Supervisor communicated to a greater degree with his employees. Nevertheless, the record indicates that Complainant failed to comply with his Supervisor's instruction. We find that Complainant has not established that the suspension issued to him was attributable to discriminatory intent.”

Maybe if more complainants understood this concept we’d have fewer EEO complaints.
[Wiley Note: Amen.]

Think of a PIP as a Life-Threatening Disease
By William Wiley

Last week a client sent me a PIP initiation letter that she had used to initiate a recent PIP. It was about six pages long and identified three critical elements that were being failed by the employee. As those who have attended our mighty MSPB Law Week seminar know, we here at FELTG knock out a PIP initiation letter in a page, maybe two if you have a large number of assignments for the employee to PIP-complete. So I was interested in why this client had put so much into the letter when very little is required, and with the general strategic approach that you don’t want to put any more into a disciplinary or performance letter than is necessary.

Well, what I found was what is perhaps the most common mistake I see in PIP letters. Following each critical element that was quoted in the letter, the client had included eight to 12 incidents from the preceding couple of months that evidence unacceptable performance under that critical element. As those of you who have attended our training or have been reading our newsletters know, the law does not require that these incidents be included because you do not have to justify a PIP. EEOC won’t even accept discrimination claims that a PIP was motivated by race, sex, age, religion, color, national origin or disability, if it’s not part of an overall hostile environment claim. Unless you have a crazy grievance procedure under a collective bargaining agreement, you can’t grieve a PIP. And if you ultimately remove the employee and he appeals, the Board will never make you produce evidence that the initiation of the PIP was justified. All you have to prove on appeal of a performance 432-removal is that the employee failed to perform acceptably during the PIP (plus compliance with the relevant procedural requirements). So proof of pre-PIP unacceptable performance is irrelevant (except for the rare occasion in which the employee can successfully allege that the PIP was initiated in reprisal for a protected activity).

Oh, I can hear your thinking through the computer monitor:

“OK, so the law doesn’t require that the pre-PIP incidents of unacceptable performance be included in the PIP. So what? They don’t hurt, do they? And they just might help the employee understand what he’s doing wrong. Besides, we’ve always done it that way. Why should we change? Don’t the judges like to see this sort of thing?”

Wrong, wrong, wrong. Here’s why you should stop putting pre-PIP unacceptable performance in your PIP-initiation letters:

1.  You are creating unnecessary tedious work for your supervisors that makes them not want to initiate a performance action. Federal employees routinely complain that their supervisors don’t do enough to hold employees accountable for unacceptable performance. If we practitioners would stop making them do things that are worthless and time consuming, then maybe they would do more to make the place more efficient.

2.  Judges hate it when you load cases with unnecessary garbage. That’s because they have to then dig through your garbage to figure out what you are really trying to say. And while digging, sometimes they come across mistakes you’ve made in doing things you didn’t even have to do. But because you did it, they now have to deal with your errors. Trust me; as an old judge, and on behalf of all the current old and new judges, we hate extra stuff.

3.  By including allegations of pre-PIP poor performance, you are focusing the employee on the past, rather than on the future. It is human nature for him to want to defend himself against your allegations and to start arguing that the PIP is unfounded. And that is energy he needs to be putting into successful performance during the PIP rather than on grousing around about the irrelevant past.

Think of the third point this way.  If you just found out you were diagnosed with a fast developing cancer, would you think it best that you put your efforts into a) figuring out how you got cancer or b) figuring out some way to keep it from spreading? Yes, when time is of the essence as it is in a PIP, you don’t want the employee grumbling around filing grievances and complaints about how he had really good excuses for the prior unacceptable performance. You want him to put every ounce of his professional being into trying to perform acceptably in the future so that he doesn’t get fired.

Because in this business, we don’t want to fire anybody unless we have to.

Social Media Discrimination?  Something to Think About
By Ernest Hadley

I’m no photographer, as anyone who has ever seen me try to operate a camera can attest.   However, the iPhone5 has been a small blessing in that area allowing me to occasionally take a decent snapshot when I’m not otherwise taking pictures of my finger.  (Does that qualify as a “selfie”?)   One such occasion was last week when my son, Luke, and I headed for the beaches of Puerto Rico for a brief respite from this seemingly endless winter.

While taking a photo of an egret perched in a small tree growing just offshore, I managed, quite inadvertently, to capture the mirror image of my photo reflected in the water.  Luke immediately wanted to post the photo on his Facebook page.  An hour later he was somewhat alarmed as the number of “likes” of my photo was beginning to surpass many of his own postings. 

By now, unless you’re a member of some aboriginal tribe, we all know the power of Facebook and the many other forms of social media and, if I recall correctly which is never a good bet, Deb has written on a few occasions about some of the do’s and don’ts of social media if you have any interest in getting a job or keeping the one you have.  Yes, that photo of you passed out with your head in the punchbowl isn’t likely to impress many prospective employers.  Well, let me rephrase that.  It likely will impress prospective employers but probably not in the way you would like.

So, what’s social media got to do with discrimination?  Well, that’s exactly what the EEOC is looking at right now.  Using it’s own form of social media, i.e., it’s webpage, the EEOC is publicizing a meeting it held last week with social media experts to gather input on how social media may affect the Commission’s enforcement of employment discrimination laws.

When you think about it for a moment, it makes sense.  A lot of information can be gained about a person from a simple Facebook page without even looking at most of the postings.  A photo, for example, can disclose race, gender, quite possibly national origin, and at least a ballpark age. 

According to the Commission’s website:

Renee Jackson of Nixon Peabody LLP, who counsels corporations, said that social media should be one of many tools used in recruitment, in order to cast a wide net for potential candidates. To the extent that employers conduct a social media background check, it is better to have either a third party or a designated person within the company who does not make hiring decisions do the check, and only use publicly available information, not requesting passwords for social media accounts. In fact, as several panelists noted, there already exist four states with laws prohibiting employers from requesting passwords and user names from applicants/employees, a number of other states have such laws pending, and there are several proposals before Congress to do the same on a federal level.

And it isn’t just in recruitment and selection that social media has crept into EEO law.  Back in June of 2012, the Commission found that an agency erred in dismissing a complaint that alleged a coworker posted a racist comment about the complainant on a social media website.  Knowlton v. Secretary of Transportation, EEOC Appeal No. 0120121642 (2012).

The public record is being held open for comments for 15 days, if you’d like to chime in on the subject, and it will be interesting to see what, if anything, the Commission comes up with for further guidance on the subject.

Here Come the Terrorists
By William Wiley

Consider the following that the U.S. Supreme Court had to say about access to classified information [my brackets added for clarity and context]:

The protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it. Certainly, it is not reasonably possible for an outside non-expert body [MSPB] to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. Nor can such a body [MSPB] determine what constitutes an acceptable margin of error in assessing the potential risk. The Court accordingly has acknowledged that with respect to employees in sensitive positions "there is a reasonable basis for the view that an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the final say in deciding whether to repose his trust in an employee who has access to such information."

Department of the Navy v. Thomas E. Egan, 484 US 518 (1988)

Whether you agree or not, and the lower court in Egan did not agree, for over a quarter of a century, the law of the land has been that when it comes to deciding who can have access to classified information, it is the agency vested with the responsibility for protecting that information who should decide who has access, “certainly” not MSPB.

Sadly for America, our current Board members apparently do not agree with this approach to our nation’s security. Here’s what we have:

1. The Air Force removed the GS-6 Supply Technician when his security clearance was revoked.

2.  Everyone agrees that there was nowhere that the agency could have reassigned the employee that did not require a security clearance.

3.  The administrative judge agreed with the agency and upheld the removal. He concluded that the position required an employee with a security clearance and that the clearance had been revoked.

So far, an Egan-inspired approach to access to classified information. The Air Force says that this guy is a security risk, it is the expert in such matters, it has the responsibility for the risks involved, and that’s good enough for government work (and I mean that in a very positive manner).

But wait! Maybe the agency did something really horrific. Maybe deference to the expertise at the Air Force when it comes to these matters is not warranted. Maybe there is something that the agency did that so undermines the rights of this employee that risking putting a potential terrorist back into a federal workplace is warranted.

And that’s what our friends on the Board decided. This removal was reversed and the employee ordered back to work (with 3+ years of back pay) because the Air Force made the following gross mistakes:

1.  Did not annotate the PD to show that a security clearance was necessary,

2.  Did not annotate the SF-50 appointing the employee to show that a security clearance was necessary, and

3.  Allowed the employee to remain on the job until the adjudication of his security clearance was completed.

So even though the Air Force is responsible for evaluating the fitness of this employee to have access to classified information and even though it is the Air Force that will get called to The Hill to explain to the American people any breach of security that can be traced to this guy (see Egan and Snowden), the Board has decided that he gets his job back because the Air Force did not make two documentary annotations that are not actually required and because maybe management gave the employee the benefit of the doubt by keeping him employed until his security clearance entitlement was fully adjudicated. Gamboa v. Department of Air Force, 2014 MSPB 13.

Feel free to draw your own conclusion as to the rightness or wrongness of this decision. What’s done is done, at least until some superior court changes things around. If you are in the business of dealing with employees who lose security clearances, you should IMMEDIATELY implement the following procedures:

1.  Annotate all appropriate PDs with the requirement for a security clearance.

2.  Annotate all appropriate SF-50s with the requirement for a security clearance.

3.  If you are awaiting the adjudication of a proposed security clearance revocation, document that you are assigning the employee to work that does not require access or that you are otherwise restricting his access to classified information.

Unfortunately, we don’t know if all three of these actions are required, or only one, or what. The conservative approach would be to do them all, at least until this Board gets a shot at another similar case in which one of the three elements is missing.

And may there be mercy on their Board-souls if Jimmy Gamboa turns out to be a bad person. Personally, I would not want to go to try to explain to the American people why this guy got access to classified information due to a clerical oversight.

Did You Read the Latest About That Juan Pablo Guy?
By Deborah Hopkins

I was at the grocery store the other day, and while I was in the checkout line I happened to get sucked in by a magazine headline teasing the latest drama from the TV show The Bachelor. These gossip magazines know exactly what to say, and how to say it, to convince us consumers to buy a copy of the must-read latest edition. I didn’t purchase the magazine, but I was secretly thrilled that the person in line ahead of me had a large order, because it gave me a chance to read the details of that dramatic helicopter ride the day before the season finale. (It was REALLY bad.) Anyway, those writers, graphic designers and marketers sure know their audience, and they know how to get that audience to read what they write.

One of the things Ernie and I stress early on when we teach Legal Writing Week (next scheduled for May 5-9 in Washington, DC) is the importance of knowing your audience, and writing to that audience when drafting any type of employment-law-related document. When tasked with any kind of writing project in this field, from a proposed disciplinary document to a final agency decision, there are a few initial questions to consider (and I’d suggest you make notes or outlines based on these questions):

1. Why am I writing this?

2. Who am I writing this for?

3. What does the reader need to know?

4. What doesn’t the reader need to know?

After establishing the answers to those questions, here are a few follow-up suggestions to keep you organized:

1. What do I already know?

2. What do I need to know, or what additional information must I gather?

3. Where do I find out what I need to know?

After defining the reasons for the writing, and after defining the specific target audience (aka, the reader), the next step in writing for that audience is determining what points you want to make.

Consider the following scenario, adapted from our Legal Writing Week materials: 
Sandra, a GS-9 Contract Specialist, answers “no” to a question on a routine background check, “Have you ever been arrested?” In reality, Sandra was arrested in May 2009 for possession of prescription drugs without a valid prescription.  The charge was dropped when she agreed to complete a rehabilitation program.

Consider the different points you’d want to make:

• In drafting a notice of proposed removal based on a charge of falsification.

• In drafting a decision to remove after hearing Sandra’s reply that she thought dismissal of the charge nullified the arrest.

• In drafting a narrative response to the AJ in Sandra’s MSPB appeal.

• In drafting a response to Sandra’s Petition for Review of the MSPB upholding her removal.

To help clarify what I mean, let’s break this down into a simple Q & A from the perspective of an Agency representative.

Q: What is the purpose of the proposal letter?
A: To advise Sandra of the charge and penalty.

Q: What is the purpose of decision letter?
A: To advise Sandra of the outcome.

Q: What is the purpose of narrative response?
A: To tell the Administrative Judge (AJ) why the Agency was correct in its selection of discipline.

Q: What is the purpose of the PFR response?
A: To tell the MSPB why the AJ was correct.

Keeping these things in mind before you write, during the actual drafting process, throughout the editing phase and into the final proofread, will help you make the points you need, directed to the reader for whom this document was written. 

At FELTG we love to teach legal writing, so much that this year we’ve added a BRAND NEW limited-enrollment workshop called Advanced Legal Writing Week. Slated for June 9-13 in beautiful Washington, DC, this class is targeted to folks who have some experience in writing documents for federal sector employment law cases, and want to develop and hone advanced skills writing more complex documents including substantive motions, post-hearing and appellate briefs and final agency decisions.  Enrollment includes an individualized assessment of a writing sample. We hope you’re intrigued enough to join us. Until then, happy writing - and keep your daughters away from Juan Pablo!

 


 

March 5, 2014 FELTG Newsletter

It was really a very simple idea.  Take a piece of plastic tubing, shape it in a circle, give it fancy name and sell them by the millions.  And for good measure, patent it.  That’s right, on this day in 1963, Arthur “Spud” Melon, co-founder of Wham-O, received a patent for the Hula Hoop.  By that point, Wham-O had already had considerable success selling something it originally called the Pluto Platter, which is a little better known as the Frisbee.  All of this makes me wonder why tossing a Frisbee through a Hula Hoop at some distance -- say a football field -- is not an Olympic sport. 

At any rate, we won’t make you jump through hoops to register and attend one of our courses or webinars.  You can simply visit our website at www.feltg.com or give us a call at 508-349-3777 for one of our upcoming events.  EEOC Law Week is the next open enrollment program we’re offering in Washington, DC, and the dates are April 7 - 11. After that, we’re hosting the increasingly popular Legal Writing Week May 5 - 9, also in Washington, DC. Or, if you prefer to go to (well, near) the beach, join us for the brand new Leave & Attendance Management and Performance Management, scheduled for July 22 - 25 in Norfolk, Virginia --just a stone’s throw from Virginia Beach.

If you’d rather attend our training from your comfy office chair, we’ve got a number of webinars on deck, including Attorneys Fees in Federal Civil Service Cases March 20. Our website has all the details.

Anyway, maybe the FELTG Hula Hoop Frisbee team will see you in Rio in 2016.

In the meantime, read and enjoy.

EH

EEOC Opens Public Comment on MD-110
By Ernest Hadley

The EEOC is now taking public comments on its proposed revisions to Management Directive 110 that has been circulating for inter-agency comment.  The public comment period closes on April 25.

According to a press release from the EEOC, the proposed directive makes changes in three areas:

1.  Implementation of Revised Regulations:

• new procedures for agencies to submit, and the EEOC to approve, requests to conduct pilot projects for processing complaints in ways other than those prescribed in Part 1614;

• revised procedure making an administrative judge's decision on the merits of a class complaint a final decision;

• a new compliance section;

• updated retaliation language in the dismissal section;

• notice to complainant when an agency is untimely in completing an investigation; an

• information on digital filings of appeals and complaint files.

2. Conflict of Interest:

• addressing EEO director reporting relationship;

• EEO and HR conflicts;

• complaint processing of matters involving EEO officials or high-level agency officials; and

• conflicts between agency legal and EEO programs.

3.  General Updates & Clarification:

• revisions to the remainder of MD-110 to reflect current policies, procedures, laws and case precedents.

The proposed revisions are available at http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001.

Federal Sector EEO: A History Lesson not Learned?
By Ernest Hadley

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around me
Pick up my guitar and play
Just like yesterday
And I'll get on my knees and pray
We don't get fooled again

 Peter Townsend, The Who
 “Won’t Get Fooled Again”

First, a few confessions.  I don't really play guitar and I’m not particularly big in the praying department.  I can get down on my knees, though these days it takes several minutes for me to get back up once I’ve done that.  But I do hope as the draft revisions of EEOC Management Directive 110 make their way through internal agency review and public comment that “we don't get fooled again.”  I mean, it does seem we’ve been through this whole process a number of times and some of the basic problems still remain.  Just like the end of the song, “Meet the new boss, same as the old boss.”

Most of you read this newsletter -- that is, to the extent that it’s actually read -- to find out what’s going on at the moment and how that may impact upon the future.  So, why write about what passes in the law for ancient history?  Three reasons.  First, we are rapidly approaching the 50th anniversary of passage of the 1964 Civil Rights Act, including Title VII of the Act which factors heavily into everything we do today.  Second, sometimes it’s a bit easier to understand where we are if we know where we came from.  And, third, maybe, just maybe, there’s something back there to be learned that can help us in shaping the future.  In other words, there’s always a chance that by looking back “we won’t get fooled again.”

So, it’s interesting that the EEOC chooses to begin its proposed revisions to Management Directive 110 with a preamble entitled “HISTORY OF THE FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT PROCESS.”  There are lots of great little nuggets in the history with things that most folks, including most savvy federal sector folks, probably don’t know.  Those nuggets explain to some degree how we come to have this archaic process where an agency accused of engaging in discrimination investigates itself, perhaps with the active participation of its own defense function and then gets to decide, at least in the first instance, whether it will actually accept or “implement” the decision of a third-party neutral. 

I guess we could blame Harry Truman.  For one thing, I doubt he’ll mind very much, but he was also the one who started it all with an Executive Order banning discrimination on the bases of race, color, national origin and religion in the federal sector back in July 1948.  Astute readers will notice something missing.  That’s right.  There’s no sex.  We’ll get back to that in a companion article, but for the moment, the important part is “[t]he Order designated the head of each department to be personally responsible for insuring that employment decisions were based ‘solely on merit and fitness,’ and it required the head of each department to designate a Fair Employment Officer to appraise department personnel actions, receive discrimination complaints, and take necessary corrective or disciplinary action.”  The Order also set up a Fair Employment Board (FEB) within the now-defunct Civil Service Commission that, among other things, could hear appeals from agency decisions and make recommendations to the agency head.

It probably seemed like a real good idea at the time.  After all, the notion of civil rights was relatively new since Harry was also the one who issued an Executive Order desegregating the Armed Forces.
Dwight Eisenhower tweaked -- and no, that’s not what Miley Cyrus does -- things a bit in 1955 with Executive Order 10590 requiring “each department or agency head to establish procedures to provide a complainant with a fair hearing and the opportunity to appeal their case.”  The FEB was abolished in favor of a President’s Committee on Government Employment Policy, which was “limited, however, to reviewing cases and rendering advisory opinions to the agency or department heads before issuance of a final agency action.”  I sense a pattern emerging here.

Presidents Kennedy, Johnson and Nixon all got involved and put their own little twists on things, but the fundamental process -- one of agencies deciding whether they had engaged in discrimination -- remained intact.  Moving into the 70’s, “testimony presented to Congress suggested that federal employees had little faith in the complaint process and often feared retaliation for challenging discriminatory employment practices.”  (Have a familiar ring to it?)

I’ve already pointed out the lack of sex -- no double entendre intended -- up to this point, but notice something else that’s missing?  Actually, there are two things.  One is a statutory prohibition on discrimination in the federal sector; everything is by Executive Order.  Also, there is no mention of the EEOC in all this.  That’s right. The 1964 Civil Rights Act created the EEOC, but it had no federal sector responsibilities.  The statutory prohibition on discrimination on the bases of race, color, sex, national origin and religion in the federal government came about in 1972 with the passage of the Equal Employment Opportunity Act and that was followed by the Rehabilitation Act of 1973.

It took another president to get the EEOC into the act and, yes, a double entendre is intended there.  Jimmy Carter gave us Reorganization Plans Nos. 1 and 2 of 1978, which ultimately led to the passage of the Civil Service Reform Act abolishing the CSC and transferring its federal sector discrimination responsibilities to EEOC.  (Yes, the CSRA also gave us the dreaded mixed case complaint and appeals processes, but that’s a subject for another day.)  So, EEOC inherited what was already an archaic process.

EEOC has made a number of changes to the process since then, but it remains fundamentally unaltered in the sense that agencies still investigate their own alleged misconduct and, despite the fact that it's supposed to be a nonadversarial process, agency defense counsel still become involved, and agencies still have to take final action on decisions by EEOC administrative judges instead of simply having those decisions become final unless timely appealed.

The history really is a worthy preamble to the proposed revisions and relies heavily on an unpublished history of the EEOC written by John Ross and kept in the EEOC’s library in Washington, D.C.  But mere interest aside, the bottom line question is whether all the revisions and its promise of federal sector reform will leave us singing that the old boss is just the same as the new boss, or is it time for that “new constitution?”

Maybe, I’ll take up the guitar.

EEOC Issues another Decision that Does a Disservice to All of Humanity
By William Wiley

Really. I try. Contrary to popular belief, I do not see it as my role in life to pick apart every little decision that comes out of MSPB or EEOC. In fact, for our friends at EEOC, I cut them even more slack than I do MSPB because a) I used to work at the Board, so I know what the standards should be, and b) because EEOC is overworked, understaffed, and has an extremely difficult job to do, sorting through the gazillions of EEO complaints in the system, trying to find and protect the occasional poor soul who actually is the victim of civil rights discrimination.

But even with that forbearance, every now and then an EEOC decision just takes my breath away. Here are the facts from the latest one to cause me to skip my afternoon nap:

-  The employee told his supervisor that he was having “health issues” (note that EEOC didn’t say that the employee was “disabled,” only that he was having health issues that may or may not be a legal disability).

-  The supervisor told the employee that if he was having health issues that were keeping him from doing his job, the supervisor would find him another job that he could do.

-  A month prior to being told about the health issues, the supervisor told the employee he had to attend mandatory meetings or he would be charged AWOL (unless he was already on approved leave).

The poor employee was so upset by all of this direction from his supervisor that he filed a discrimination complaint charging his supervisor with creating a “hostile environment.” The courts have wisely considered these sorts of situations as beneath the intention of the civil rights legislation. The Supreme Court has said something to the effect that civil rights legislation should not be used for the purpose of creating a civil society. Another court (memory escapes me, but you don’t really need a citation for this stuff) said that the courts were not to be used as some sort of super human resources office. Yes, the federal courts seem to appreciate that they have more important things to do than try to referee disagreements between disgruntled employees and overbearing supervisors in the guise of determining whether a “hostile environment” exists in some office somewhere.

Well, that sane approach to life is not one that we see in EEOC’s decision in this case. Reversing the agency’s dismissal of the complaint for failing to state a claim, EEOC concluded that these acts indeed could be considered by a reasonable person to be “hostile or abusive” and ordered the agency to accept and investigate the claims. Complainant v. Secretary of Defense, Agency, EEOC Appeal No. 0120132274 (December 13, 2013).

Oh, where to start. First, the incident relative to telling the complaint to attend a mandatory meeting predates any knowledge on the part of the supervisor that the employee had a “health issue.” There is no law or regulation that guarantees that an employee is entitled to a hostility-free work place. You can’t pursue a discrimination complaint on the basis of being subjected to a hostile environment UNLESS you relate the hostility to a protected category (sex, race, disability, etc.). From EEOC’s decision, this (anonymous) complainant has made no such claim. Even if we were to stretch it and accept that a month later, the employee claims that the meeting incident was based on his disability (more than a “health issue”), there is no claim, and apparently evidence contra, that the supervisor knew about the health issue at the time if the meeting. You cannot be motivated to reprise on a basis on which you have no knowledge.

Second, and much more important in my mind, since when is it abusive or hostile to tell an employee that a meeting is mandatory and the effect of not attending the meeting is AWOL? That’s just the law. EEOC doesn’t even try to inflame the situation; the “supervisor stated.” Not yelled, or spit, or cursed … just stated. What would be less abusive, if he whispered it? Personally, I think it would be abusive if the supervisor did NOT warn the guy that he will lose pay if he doesn’t attend a mandatory meeting, but that’s just me.

Third, there’s the incident of the employee telling the supervisor that he has health issues and may not be able to do his job. EEOC’s decision says that the “complainant’s supervisor threatened to transfer him to another work site if he could not do his job.” Well, if the health issues constitute a disability and the employee can’t perform or be accommodated in his job, the supervisor is required to offer the employee any vacancies it has at the same grade or lower anywhere in the agency if the employee is qualified for the work. The supervisor may not have said it as eloquently as would those of us immersed in the niceties of disability accommodation, but come on … Abusive? Hostile? Not even close, at least not close enough for any reasonable person I know.

I will concede that this is just a decision involving a dismissal, resulting in a remand for investigation. And I will also concede that there is the possibility that the supervisor was abusive rather than conciliatory. Maybe the supervisor said, “Gee [complainant], I’m really sorry to hear you have a medical problem that keeps you from doing your job. But don’t worry. If we can’t help you get-er-done in this position, we have another position to which you can be reassigned so that you won’t be removed for medical reasons, and you won’t even lose any salary.” Or, maybe instead he said, “Health issues? I’ll show you stinkin’ ‘health issues’ once I kick your sorry butt up over the EEO office. You either get your lazy backside in there and do the job you were hired to do or I’ll reassign you to Timbuktu as a ‘reasonable accommodation’ of your fake disability.” But shouldn’t a complaint have to allege issues with specificity so that the agency can fairly interpret whether there’s a viable claim of hostility based on a protected category? Requiring the agency to accept vague accusations such as these – “my supervisor threatened me” – just puts one more case into an overburdened system that the agency will have to investigate, some supervisor will have to give statements, and legal will put pressure on line management to settle, because nobody has the time or interest in litigating these sorts of trivial allegations.

And who suffers the most? Those employees who have legitimate, substantial claims of civil rights discrimination; the ones who have to wait in line behind this guy who got his feelings hurt because his supervisor told him to do his job. If EEOC is seriously concerned about attacking civil rights animus in the federal workplace, it will allow agencies to dismiss these sorts of trivial claims and thereby focus limited resources on the real discrimination that’s out there. The result would be a better government, a stronger country, and a grateful humanity.

Some Exoneration for EEOC on ADAAA
By Ernest Hadley

Some five years after the Americans with Disabilities Act Amendments Act became law, we now have a first federal appellate court decision applying the new definition of disability. There are several points that come out of Summers v. Altarum Institute Corporation, No. 13-1645 (4th Cir. January 3, 2014). 

First, the federal appellate courts, or at least the Fourth Circuit, seem to have gotten loud and clear the message Congress sent in passing the ADAAA.  More on that anon.  Second, it’s nice to know that what Gary Gilbert and I have been teaching about the ADAAA over the last few years is pretty much right in line with what the Court has to say in Summers.  Tangentially, this also is good news for those of you who have been listening to us over the last few years.  So, let’s see what it is the Court has to say.

First, a few facts.  Summers worked at the Maryland offices of a client of Altarum, the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury (DCoE).  As the Court eloquently explains:

On October 17, 2011, Summers fell and injured himself while exiting a commuter train on his way to DCoE. With a heavy bag slung over his shoulder, he lost his footing and struck both knees against the train platform. Paramedics took Summers to the hospital, where doctors determined that he had sustained serious injuries to both legs. Summers fractured his left leg and tore the meniscus tendon in his left knee. He also fractured his right ankle and ruptured the quadriceps-patellar tendon in his right leg. Repairing the left-leg fracture required surgery to fit a metal plate, screws, and bone into his tibia. Treating Summers's ruptured right quadriceps required another surgery to drill a hole in the patella and refasten his tendons to the knee.

Doctors forbade Summers from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for seven months at the earliest. Without surgery, bed rest, pain medication, and physical therapy, Summers alleges that he would "likely" not have been able to walk for more than a year after the accident.

Summers inquired about short-term disability benefits and working at home as he recovered.  Altarum’s insurance company provided the short-term benefits but Altarum never responded to Summers’ request to work at home nor did it suggest any alternative accommodations.  Instead, on December 1, 2011, it fired him.

The first thing the Court focuses on is the “broad coverage” Congress intended in passing the ADAAA and its rejection of the rigorous standards set down by the Supreme Court in cases like Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).  The Court noted “Abrogating Toyota, the amended Act provides that the definition of disability ‘shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by [its] terms.’ 42 U.S.C. § 12102(4)(A).”

The next thing the Court focuses on is the EEOC’s amended regulations at 29 CFR Part 1630 and the appendix to those regulations.  That’s also significant because in Sutton v. United Airlines, 527 U.S. 471 (1999), the Supreme Court rejected the EEOC’s regulatory definition of disability noting that although Congress gave the Commission the authority to promulgate employment regulations under the ADA, it never specifically authorized the Commission to issue regulations defining a disability.  As result, the Sutton Court concluded it did not have to grant deference to those regulations and imposed its own definition of disability on the EEOC.

Noting that the duration of an impairment is one factor that goes to whether it is substantially limiting, the Summers Court relied on an appendix example of someone who has a back impairment that imposes a 20-pound lifting restriction for several months in finding “[i]f, as the EEOC has concluded, a person who cannot lift more than twenty pounds for ‘several months’ is sufficiently impaired to be disabled within the meaning of the amended Act, then surely a person whose broken legs and injured tendons render him completely immobile for more than seven months is also disabled.”

Yes, the Court granted deference to the EEOC’s regulations finding that its interpretation that a temporary condition could be an impairment that substantially limits a major life activity was a reasonable interpretation of the ADAAA and “[t]he impairment alleged by Summers falls comfortably within the amended Act's expanded definition of disability.”  That’s what I’ve always called the “last nail in the coffin” of the ADAAA -- the specific authorization by Congress for EEOC to promulgate regulations defining a disability under the Act.  It was put there as a guard against courts undoing the ADAAA the same way the Supremes undid the ADA.  Apparently, at least the Fourth Circuit got the memo.

The Fundamental Conflict in OPM’s Unacceptable Performance Regulations
By William Wiley

Goodness, we’ve received a bucket-load of questions recently about taking a performance-based removal. You would think that 35 years after the law went into effect that provided for removing a poor performer, we “experts” would know how to do it. But judging from the questions I’ve been getting, many don’t understand the basics. After a re-read today of OPM’s regulations for addressing unacceptable performance, I think I see what may be causing part of the problem.

When trying to understand what to do in federal employment law, as we always teach in our FELTG seminars, start with the statute. And here’s what the good old Civil Service Reform Act of 1978 has to say about addressing unacceptable performance:

Each performance appraisal system shall provide for … removing employees who continue to have unacceptable performance BUT ONLY AFTER AN OPPORTUNITY TO DEMONSTRATE ACCEPTABLE PERFORMANCE [emphasis added]. 5 USC 432(b)(6).

Back in the day when OPM first read this language, by regulation it decided to identify this statutorily-mandated “opportunity” as a “performance improvement period,” and thus was born the lovely acronym “PIP.” Along the way in the 80’s, for reasons I have either forgotten or which were never made public, OPM changed the name of the opportunity from “performance improvement period” to “performance improvement plan.” Conveniently, the PIP acronym still filled the bill, so we practitioners carried forth with that. “PIP ‘em early; PIP ‘em often” just like voting in Chicago, continued to be the mantra of those in the know.

Today, OPM’s regulation does not use the acronym “PIP” at all. Apparently, some smart wordsmith over there re-read the statute and realized that Congress had never called for an “improvement period,” but rather for an “opportunity to demonstrate acceptable performance.” So when you look for the regulatory requirements for taking an unacceptable performance action, you will see that you have to provide the employee an “opportunity” rather than a PIP. To smaller minds, this may not seem like much of a difference. But to our big heads here at FELTG, it is a difference similar to the difference between night and day. Accommodate an analogy for a moment and you’ll see why, as well.

You went to college (some of you more than others). You took courses that culminated in a final exam (some of which you no doubt passed). The lectures that made up the course were your opportunity to improve your base of knowledge on the topic. The final exam was your opportunity to demonstrate competency in the subject. The lectures and the improvement of your knowledge base took several weeks and months. The final exam took a couple of hours. Regardless of how your personal experience may have varied a bit from this example, one thing is certain: Your professor never taught you the material during the final exam. You had to know it by then.

Now go back and reconsider the language of the statute, “an opportunity to demonstrate acceptable performance.” When you think about the analogy, this sounds a lot like a final exam, doesn’t it?  Certainly more so than it sounds like the lecture part of a course, the part in which you were working to improve your performance. And when you read MSPB decisions, you will see that the Board has never said that the employee has to be trained to do his job during the PIP, only that at a minimum he needs to be given critical feedback so that he knows what he’s doing wrong. When we here at FELTG teach performance, we tell participants to think of the PIP as the final exam, because doing so changes the supervisor from being a trainer presenting material to an evaluator giving constructive feedback.

And here’s where we come around to the rub in OPM’s regulations. Although the regs do a nice job of using the statutory language that says the employee is to be given an “opportunity” to demonstrate good performance (the final exam), it also says that the agency must provide assistance to the employee to improve performance (analogous to the lectures and the classes) during the opportunity period. 5 CFR 432.104. There is nothing in 5 USC 432(b)(6) -- the statutory section from which OPM derived the concept of a PIP -- about being giving assistance to “improve” performance. Subsection (b)(5) speaks to the system providing for assistance to improve, but that doesn’t mean that the improvement has to occur during the opportunity period.

So, you are wondering with your mighty brain: Who gives a rat’s behind about this arcane language? Well, you do, even if you don’t know it, and certainly the citizens of our great country who would like to see an efficient and effective government care, because:

• If we are dealing with an “opportunity to demonstrate” period, it should be short, to the point, and up or out without a great deal of time involved (like a final exam).

• However, if we are dealing with an “improvement period,” then depending on the job, we could easily argue that several months might be necessary for the employee to improve. And at the end of the period we set, if the employee still is not performing acceptably, maybe that’s because we didn’t give him enough time to improve.

Fortunately, MSPB’s case law tracks toward the statute; that the period is an opportunity to demonstrate competency -- mainly an obligation on the employee, not the time to be taught how to do the job -- mainly an obligation on the agency. At the same time, the regulatory combining of the two concepts causes supervisors and frontline practitioners a world of confusion because they get into the mindset that the employee needs to be given many months during a PIP to improve because he’s such a poor performer now.

I’ve always given our friends at OPM assignments (and they always graciously ignore whatever I recommend). So here’s another one. Hey OPM, if you want to implement what Scotty Campbell and the other Founders of the CSRA intended, please rewrite your regs so that it’s clear that an “opportunity to demonstrate” is different from an “improvement period.” If you’ll do that, and by regulation opine that in most situations, 30 days is a fully adequate opportunity period, I’ll rewrite every PowerPoint slide, book, and article I have ever written to remove the acronym “PIP” and replace it with “opportunity.” And from that point forward, I shall use the acronym only for the one purpose it is so well suited; to identify one of the backup singers for the great Gladys Knight.

Midnight Train to Georgia. Woo hoo!

Sneaking Sex in the Back Door
By Ernest Hadley

So, if you read my companion article, Federal Sector EEO: A History Lesson not Learned, you know that sex was not included when Title VII of the 1964 Civil Rights Act was first proposed.  What we do know is that sex was more or less snuck in the back door at the last minute, sort of like Robert Palmer’s “Sneakin’ Through the Alley with Sally.”  There’s almost no legislative history on the addition of sex to Title VII.  What we’re less certain about is why sex suddenly got added to the Act.

There are two competing versions of history here.  One is that sex was added as a joke at the last minute to Title VII in an attempt to defeat the bill.  That version of history says that southern Democrats who were not in favor of the bill came up with a plan to amend the legislation to include sex thinking that Congress would not pass bill with sex in it.  Another version says there was a planned effort by the National Woman’s Party headed by Alice Paul to include sex in the bill.  There is perhaps some irony in the fact that proponents of both versions point to virtually the same evidence to support their respective points of view.  By adding just one word to Title VII, Representative Howard Smith, a Democrat from Virginia, touched off a debate that has been the subject of both law review and historic journal articles.

Smith, a known opponent of civil rights legislation, had worked with Paul prior to the 1964 Civil Rights Act thus lending support to the notion that his amendment was a genuine attempt to include sex in the bill.  However, his somewhat sarcastic comments on the floor in introducing the amendment have also been used to call his motives into question.

In an article Was the Addition of Sex to Title VII a Joke? Two Viewpoints, Scott Highhouse of Bowling Green State University writes that Smith read the following letter, ostensibly from a constituent, during the debate on the amendment adding fuel to the notion that the amendment was joke:

I suggest that you might also favor an amendment or a bill to correct the present “imbalance” which exists between males and females in the United States….The census of 1960 shows that we had 88,331,000 males living in this country, and 90,992,000 females, which leaves the country with an “imbalance” of 2,661,000 females….

Just why the Creator would set up such an imbalance of spinsters, shutting off the “right” of every female to have a husband of her own, is, of course, known only to nature. But I am sure you will agree that this is a grave injustice to womankind and something the congress and president Johnson should take immediate steps to correct, especially in this election year….Would you have any suggestions as to what course our Government might pursue to protect our spinster friends in their “right” to a nice husband and family?

Even the EEOC seemingly subscribes to this view writing on its webpage celebrating the 35th anniversary of Title VII:

EEOC had expected to receive very few charges of sex discrimination in its early years. It had assumed that the vast majority of charges would allege race discrimination because Title VII had been debated and passed in a racially-tense environment and most of the Congressional and media attention had focused on the problem of race discrimination. It was a surprise to find that fully one third of the charges (33.5 percent) filed in the first year alleged sex discrimination. After all, the prohibition against sex discrimination had been added as a last minute amendment by Congressman Howard Smith of Virginia who opposed the civil rights legislation and thought that Congress would reject a bill that mandated equal rights for women.

But, Highhouse and others point to another comment made by Smith that indicates his support was genuine.  Smith noted that under the bill without sex an employer confronted with two applicants, a black woman and a white woman, would be tempted to hire the black woman to avoid a race discrimination complaint and the legislation as drafted could actually work to the disadvantage of white women. 

Of course, there is a fundamental flaw in Smith’s reasoning in that the prohibition on race discrimination protects everyone and not just minority races.  So, in his example, if the employer used race as a substantial or motivating factor in making the hiring decision, whichever way it went, the other applicant would have a valid race discrimination claim, regardless of whether sex was included in the bill.

Anyway, if you’re so inclined, there’s lots out there to read on the subject and you can draw your own conclusion on which version is correct.  What is not really subject to debate any longer though is that, for whatever reason, including sex in Title VII was the right thing to do.

Now, about that Employment Nondiscrimination Act that’s been languishing in Congress for several years, heard any good jokes lately?

Who Says We Aren’t Funny?
By William Wiley

Every now and then some reader will chastise us here at FELTG for being too serious. Of course, ours is a serious business and many of us deal daily with human suffering of one degree or another. However, as we are always eager to serve our clientele, given the current state of the decisions we have been getting out of EEOC and MSPB lately, I thought we could all benefit from a little federal employment law humor. Just promise me you won’t hate me if these are not really funny:

One day in heaven, the Lord decided He would visit the earth and take a stroll. Walking down the road, He encountered a man who was crying. The Lord asked the man, "Why are you crying, my son?" The man said that he was blind and had never seen a sunset. The Lord touched the man who could then see... and he was happy.

As the Lord walked further, He met another man crying and asked, "Why are you crying, my son?" The man said he was born disabled and was never able to walk. The Lord touched him and he could walk... and he was happy.

Farther down the road, the Lord met another man who was crying and asked, "Why are you crying, my son?" The man said, "Lord I'm an agency federal employment law practitioner."
... and the Lord sat down with him and cried.

Here’s another.

An appellant’s lawyer gets sideswiped by a truck, and he yells to a passerby, "Look what he did to my car!" The passerby says, "You're kind of materialistic, you didn't even notice that you just lost your arm" The lawyer says, "Oh my God, my Rolex!"

And one last joke:

The union steward heard voices from down in the pond near the office. When he went to check it out, he found a bunch of young women from Employee Relations skinny-dipping there. They all screamed and went down to the deep end where the water was up to their necks. One of the women shouted, "We're not coming out until you leave!" The union steward said, "I didn't come down here to watch you ladies swim naked. I came here to feed the alligator."

OK, I’ll keep my day job.

Don’t Eat the Pink Slime!
By Deborah Hopkins

There are certain areas in life where settling for less than perfection is just not a good idea. Immediately my thoughts jump to running shoes. While training for my first marathon years ago, I realized just how important it is to have quality running shoes. A $35 sale on sneakers might be a good deal, but my poor legs would suffer if I settled for a shoe that didn't meet my body’s specific training needs.

Let me make this a bit more relevant to the non-runners: now I’m talking to the meat-eaters out there. If you’re a carnivore, think about the quality of meat you consume. You definitely want meat that conforms to health and safety standards, don’t you? It’s not worth risking your well-being to settle for anything less than the minimum grade requirement set by USDA. (I’m shuddering now, and having flashbacks from the 2013 news headlines on the pink slime “meat” commonly used at fast food chains.) Vegetarians, you can easily apply this example to tofu or black bean burgers. Other areas where we are told not to settle include education, the friends we choose, the jobs we take, and of course the mate(s) we select. Although, just because we’re not supposed to settle doesn’t mean we don’t, from time to time.

If you read my articles with any regularity -- and I know that’s a big IF since they usually appear last in the FELTG Newsletter, and by the time you get down there you’re probably ready for your lunch break -- you may recall I’m putting in my time as a 2L in the evening program at the David A. Clarke School of Law. This semester, I’m focusing on Alternative Dispute Resolution and have recently been doing some research on settlements. While my current research encompasses a broader reach than federal sector employment-related settlements, some of the principles I’m looking in to are the same.  Here are some things I’ve learned, that you may or may not already know.

Whodunit?

For a settlement to be reached there is no requirement that either party admits to any wrongdoing, so says EEOC Management Directive 110, Chapter 12 on Settlement Authority. And, a settlement can be reached at any time within the EEOC complaint process. Think about that for a minute. If an agreement can be reached early on, the time-consuming process of investigation and discovery, not to mention actual litigation (and the interminable wait time to get a hearing), will be spared. Most cases settle long before they reach the litigation stage, and long before all the facts are determined. So, the next time you hear about an EEO settlement, remember that it might not be possible to determine who did what to whom. Usually, what actually transpired is known by only the parties involved. Maybe I’m just a nerd for analyzing human behavior, but I think that dynamic is so interesting. When reached early in the process, settlement is resolving a dispute without doing any actually disputing. All this information makes me wish that I’d known how to negotiate settlements, without admitting liability, when I was a teenager and had two teenage sisters I had to share a bathroom with. Life would have been so different.

That Sweet Contract Term “Consideration” Matters.

Oh, it’s so exciting when the things I learn in my core classes in law school intersect with what we do here at FELTG. (Told you I’m a nerd.) Bill and Ernie have both told me that Contracts is a class that will prepare me for life as a federal employment law attorney, and indeed they’re correct because now I know that a valid settlement agreement must include consideration. Ferrarese v. Postmaster General, EEOC Appeal No. 01A31288 (2004). The old-school definitional interpretation of consideration required some type of detriment to the parties involved; a newer definition, put simply, is “a bargained-for exchange” between the parties. [Editor’s Note: Whatever happened to a “mere peppercorn”?  And, what the heck is a peppercorn anyway?] The latter is probably more accurate today because often a settlement is an exchange that leaves both parties in a better place than a long, drawn-out litigation process might. Think about it: even if a complainant prevails and the agency is found liable, that complainant has a whole mess to deal with in the aftermath of the EEO complaint. The same is true if an agency prevails. If the case is settles and the details are kept out of the general population’s knowledge, there can be tremendous benefit. So, while that bargained-for exchange in the settlement negotiation requires each party to do something, that something doesn’t necessarily have to be to the detriment of the parties.

A Settlement Agreement Doesn’t Have to be Signed.

Wait, what? It’s possible to have an oral settlement agreement? How will it be enforced? How can it even be proven to exist? Those were just some of the questions I had when I learned this tidbit, so let me explain. Let’s say the parties are at the hearing stage and after months or years of battling they finally, finally, decide to settle. The parties can enter into the agreement during the hearing and make the terms a part of the record, therefore causing the oral agreement to be binding to both the complainant and the agency.  Makes sense now, right? (If you need more information on this, check out the section on Oral Agreements in Ernie’s EEO Guide).  [Editor’s Note:  Deb’s correct, but oral agreements are like the plague.  They are to be avoided at all costs lest you really like being involved in compliance proceedings.]

These are just a few lessons I’ve learned when it comes to settlement agreements. Please don’t misunderstand me and assume that I think cases should always settle. There are times when it’s important to take the message all the way up (hey, that’s what we have a Supreme Court for) and make a statement. But, settlement can be a very good thing. While this article focused on EEO, settlements have a place in MSPB and arbitration as well. Lucky for all of us, Bill and I are planning to tackle this topic in a 90-minute webinar on July 10, Effective Settlement Negotiations in the Federal Workplace. Until then, happy settling -- and please, please stay away from the pink slime.

 

FELTG's HR Current: GEAR Developments

FELTG’s HR Current:
Performance Management
By Barbara Haga

Editor’s Note:  When we first started this little venture, oh so many years ago, FELTG was really just a one-trick pony, though even then none of us were young enough to be considered ponies.  We got together a few times a year as much for social purposes as to teach folks a few of the things we’d learned over the years. But one thing led to another and continues to do so as we’re always looking for new opportunities to expand our federal sector employment law curriculum in ways that help you day-to-day in the workplace.

We added this column by Barbara about a year ago as part of our continuing effort to keep you up to date on the cutting-edge issues in our field.  So, I’m now pleased to announce our latest venture with Barbara.  Two new two-day HR courses -- Leave and Attendance Management and Performance Management.  Designed specifically for the HR practitioner, these are hands-on courses that we’re really excited to offer for the first time.

To launch these new courses, FELTG has set the inaugural voyage for July 22 - 25 right in Barbara’s hometown of Norfolk, VA, with a repeat December 2 - 5 in Washington, D.C.  Details are available on our website at www.feltg.com.

We hope you’ll join Barbara for one or both of these courses. And with that, let’s move on to this edition of HR Current.

EH


GEAR Developments Part III

This is the final column addressing the GAO’s report on GEAR issued in September 2013.  The report is available at this link:  http://www.gao.gov/products/GAO-13-755.  

Implementation

If you’ll recall, there were five pilot agencies.  Three implemented GEAR essentially across the agency. Those included the Department of Energy (DOE), the Department of Housing and Urban Development (HUD), and the Office of Personnel Management (OPM).  The Department of Veterans Affairs (DVA) implemented at a unit within the National Cemetery Administration (NCA) and the Department of Homeland Security (DHS) implemented at Coast Guard Base Boston. 

Appendices V through IX (pp. 40-56) include agency-specific information on the GEAR pilot.

Common Attributes

All of the pilots included training for managers in some form as a fundamental part of their rollout.  At DOE, OPM, and DHS it was specifically noted that this training was mandatory for supervisors and managers.  Many of you reading this article can appreciate how important it is to have the top-management support necessary to make this kind of training mandatory and to enforce the requirement.  Employee training was also included in most of the agencies’ rollouts.  We sometimes tend to overlook the importance of the employee’s participation in this process, but if performance management is going to achieve its ultimate goals of improved organizational and individual performance, then the employee needs an understanding of what they are being rated on, being prepared for and able to fully participate in progress reviews and annual assessments, preparing self-assessments, etc.
 
Another theme that emerged in the reports was the deployment of tools to assist in ensuring that all of the requirements of the performance management process were met.  Both DoE and HUD mentioned deployment of automated systems as part of the GEAR rollout.  DVA’s implementation included development of a variety of “tools to simplify supervisor performance management, employee work required for self-assessments, and requests for training or special assignments.” (p. 53) OPM redesigned forms to make them simpler.  DHS posted information on internal websites to assist in the process.

We have all probably lived through implementation of a new program sometime in our careers that never really made it because all of the enthusiasm waned over time and the things that were supposed to happen didn’t.  Two items addressed in the reports were designed to ensure compliance: metrics and accountability.  The DOE and HUD reports specifically mentioned the tracking of completion of various steps in the process.  The DHS implementation included plans to prepare “performance conversation timeliness guidelines for senior leadership” (p.43). DVA identified performance and customer service metrics as part of their plans, and OPM was tracking completion of progress reviews and completion of training requirements. 

Along with the metrics comes the enforcement.  As noted last time, these steps in the performance process are already covered in the Part 430 regulations, but as part of GEAR most of the agencies built something into their systems to actually hold supervisors accountable.  The DOE report noted one of the items to be developed means to “ensure that constructive action is taken when supervisors do not meet training requirements”  (p.47). HUD noted that they would measure both timeliness of establishing performance plans as well as timeliness of completion of ratings.  DHS incorporated a supervisory performance element for supervisors.  DVA and OPM also addressed completion of various steps in the process as a key component of GEAR. 
 
 What happened with the progress reviews?  Remember that the original GEAR recommendation was for quarterly reviews.  Both DOE and OPM adopted that recommendation calling for three progress reviews.  DVA and DHS opted for reviews every four months.  HUD’s report doesn’t specifically address the interval.  Over time hopefully data from sources such as the Federal Employee Viewpoint Survey and other agency instruments will help assess whether more reviews significantly impact performance achievement and management and employee satisfaction.   

Barbara’s Favorites

As I read through the reports, there were a number of things I took away as positives.  One notable item was that all of the improvements identified by the pilot participants were achieved within the existing regulations – so there is no reason that other agencies can’t improve their systems by following some of the recommendations. 

Paying attention to performance management can yield results just by making it a priority.  The same thing occurred with NSPS in DOD.  Because of the impact of the system on pay and all of the focus on the system, employees and supervisors took great care to complete what was required, to do it well, and to do it in a timely manner.  

I thought several actions in the reports were worthy of highlighting because other agencies might want to consider some of these ideas for their organizations and existing performance systems.  

• Alignment between individual and organizational performance.  The DVA GEAR implementation at NCA included a major focus on alignment of individual and organizational performance, providing a monthly scorecard to supervisors and employees “… with information of several of NCA’s performance targets that include agency, region, and cemetery-level performance in key operational areas such as client satisfaction and employee safety” (p.51).  If we want people to row in the same direction, they need to know where to go.  I have had supervisors in classes trying to develop performance plans and when I talk about linking elements to overall agency goals or preparing for assessments by gathering information on accomplishment of agency goals, sometimes they have told me they don’t know what those are or where to get that kind of data.  Putting it in managers’ and employee’s hands is a huge step forward. 

• In-service day.  Having worked at NASA and many places in the Navy with engineers, intelligence officers, and others in demanding positions, I have heard many times that there are not enough hours in the day to take care of all of the HR things that need to be done and get the technical work done, too – and sometimes that technical work directly affects national security or patients’ lives and other critical things.  Those managers often reminded me of Dr. McCoy from Star Trek – “Jim, I’m a doctor, not an engineer,” only in this scenario it’s “I’m a ______, not an HR Specialist.”  HUD heard this complaint, too, and they came up with a monthly in-service day plan to ensure that supervisors put time on their calendars to take care of their supervisory responsibilities.  If you’ve ever tried to carve out some quiet time out of your day to concentrate of something you needed to work on, you might appreciate how important this time could be for meeting-weary supervisors and managers.

• Supervisory assessment.  A common complaint within the federal sector is that supervisors are often selected for their technical knowledge rather than their ability to lead people.  OPM’s GEAR efforts were concentrated on improving supervisor assessment, selection, and development.  Their efforts included evaluating competencies, designing an occupational questionnaire and structured interview questions for applicants for supervisory positions, and a revamped supervisory training curriculum.  Hopefully the products developed by OPM will be shared with the rest of the Federal agencies so that validated tools can be made available to selecting officials so that they can obtain information from candidates on those attributes that will make selectees succeed in their supervisory responsibilities and that they are then provided the development that they need to further hone those skills.
 

GEAR Developments Part II
 

We are picking up this month with further analysis of the GAO’s report on GEAR issued in September 2013.  The report is available at this link:  http://www.gao.gov/products/GAO-13-755.  

GAO’s Second Area of Review

GAO also looked at how OPM and the Chief Human Capital Officers Council (CHCO) have defined their roles in implementing GEAR more broadly across the Federal government.  On page 11 of the report the following statement appears: 

According to OPM officials, OPM, as co-chair of the CHCO Council, will provide leadership and direction for the government-wide implementation of GEAR, but the future of GEAR will be determined by the CHCO Council as a whole and not by OPM alone.  They noted that the GEAR framework is intended to be flexible and thus did not want to mandate how agencies should implement it.

I guess I am confused again.  The CHCO Council has authority to make decisions about implementing GEAR government-wide?  According to the CHCO website (http://www.chcoc.gov/about.aspx) this is its mandate:

The CHCO Act (Chief Human Capital Officers Act of 2002) also established a Chief Human Capital Officers Council to advise and coordinate the activities of members’ agencies on such matters as the modernization of human resources systems, improved quality of human resources information, and legislation affecting human resources operations and organizations. (parenthetical and italics added)

It appears that the CHCO Council has gotten a big promotion. 

The second half of the statement from page 11 quoted above also troubles me.  “GEAR is supposed to be flexible and thus there shouldn’t be a mandate on how it should be implemented.”  Earlier in the report GAO includes comments from OPM officials on the five GEAR recommendations.  To refresh your memory the recommendations are:

1) Articulate a high performance culture;
 2) Align employee performance management with organizational    performance management;
 3) Implement accountability at all levels;
 4) Create a culture of engagement; and
 5) Improve the assessment, selection, development, and training of supervisors.

The OPM responses cited in the report were as follows:

OPM officials told us that the practices in the GEAR report are well known and credible but not universally applied in federal agencies.  According to an OPM senior official, the GEAR recommendations are “common sense but not common practice.”  The same official noted that the GEAR recommendations align with current regulations addressing federal performance management, but that GEAR adds specific strategic and technical guidance and communication strategies. (GAO-13-755, pp. 6-7)

If the GEAR recommendations align with the regulations, then how much flexibility is there in implementing them?  From my reading of the regulations most of these recommendations are already requirements for agency systems. 

Number 1 – If agencies actually implemented programs that delivered everything that OPM demanded in 5 CFR 430 might we not have that high performance culture?

Number 2 - Does 5 CFR 430.102(b) not start off by establishing that performance management is the method by which the agency communicates and clarifies organizational goals to employees and identifies accountability for accomplishing those organizational goals?

Number 3 - Are managers not already accountable for setting plans, advising employees of the performance requirements, providing a progress review, dealing with unacceptable performance, and rating at the end of the cycle?  5 CFR 430.204 provides the general parameters for an agency system which includes all of these elements and then 5 CFR 430 sections 205 through 208 give the details of how the systems are to operate. 

Number 4 - Employee engagement in system design and implementation and in establishing measures is mentioned at least three times in 5 CFR 430 that I could find.  5 CFR 430.204(c):  “Agencies are encouraged to involve employees in developing and implementing their system(s). When agencies involve employees, the method of involvement shall be in accordance with the law.”  5 CFR 430.205(d):  “Agencies are encouraged to involve employees in developing and implementing their program(s). When agencies involve employees, the method of involvement shall be in accordance with law.”  5 CFR 430.206(b)(1):  “Agencies shall encourage employee participation in establishing performance plans.”  I think this recommendation is a lot like Prego spaghetti sauce – “it’s in there.” 

Number 5 – Improving supervisor selection and training is not a recommendation that is necessarily specific to performance management.  I suspect that practitioners in all HR areas would say that if managers understood better about selections, or discipline, or EEO, or performance, the system would operate much better.  5 CFR 430.209(c) already requires that agencies communicate with supervisors and employees (e.g., through formal training) about relevant parts of its performance appraisal system(s) and program(s).

I think OPM’s comments could have been much stronger but then they would have to acknowledge a problem.  The regulations already require these things as noted above, but it would seem they are not happening or they are not done effectively.  How is it that 35 years later we are still talking about whether the appraisal systems meet the requirements of the regulations?  Both OPM and the Comptroller General have authority in this area (see 5 USC 4304-4305).  Yet, the big recommendation at the end of the GAO report is that OPM, in collaboration with the CHCO Council and participating Federal agencies, should define roles and responsibilities including updating the toolkit, providing guidance on the use of metrics, and disseminating information through various websites.  (GAO-13-755, p.28)  I’m not feeling too hopeful that this will achieve a significant turnaround.  But, I could be wrong. 

Next time we will look at the feedback from the pilot agencies.  

 
GEAR Developments

In my first HR Current article written last March I discussed the GEAR (Goals-Engagement-Accountability-Results) recommendations regarding performance appraisal.  An update is appropriate since the Government Accountability Office (GAO) issued a report in the fall on their assessment of the GEAR pilots.  See Opportunities Exist to Strengthen Performance Management Pilot, GAO-13-755, September 12, 2013 available here:  http://www.gao.gov/products/GAO-13-755.

The recommendations to improve the federal performance management system came from a group working as part of a joint effort between members designated by the National Council on Federal Labor-Management Relations (LMR Council) and the Chief Human Capital Officers Council (CHCO).  The report was made in November 2011 and is available at:  http://www.lmrcouncil.gov/meetings/handouts/GEAR%20Report%2011-17-2011.pdf

In its report the GAO assessed the implementation of the GEAR recommendations at five agencies.  The GEAR recommendations that GAO reviewed were: 

• Articulate a high performance culture
• Align employee performance management with organizational performance management
• Implement accountability at all levels
• Create a culture of engagement
• Improve the assessment, selection, development, and training of supervisors

Predictable GAO Response

I am sorry, but GAO reports really bug me.  I am on the distribution list (you can join too at this link:  http://www.gao.gov/subscribe/index.php) so I see the list of issued reports every day.  Have they ever issued a report that was titled, “This program is going well and the agency should be commended?”  I don’t think so.  The title of this one is typical with “opportunities exist to strengthen the pilot.”  Okay, I suppose I should not be so sensitive; I think we would all agree that there is much to be done to make performance management better.

But, the content of the report did leave me cold.  I was hoping for an assessment of whether implementation of GEAR really changed the performance culture so that management reported that expectations were clearer and that led to significant improvements in what employees achieved, that managers and employees were seeing benefits resulting from increased communication about expectations and accomplishment, that managers felt that they had the necessary tools to hold employees accountable to expectations – you know, little things like that.  Instead many of the recommendations in the report focus on the implementation of the pilot from a project management view.  There is some attention to what I would term the important things based on my list of what I was hoping to see. 

Pilot Agencies and Unions

Five agencies are part of the pilot.  Three agencies, Department of Energy (DOE), Housing and Urban Development (HUD), and the Office of Personnel Management (OPM), implemented essentially agency-wide pilots covering roughly 22,300 employees.  The Veterans Administration implemented at a unit within the National Cemetery Administration covering 240 employees and Coast Guard Base Boston under the Department of Homeland Security was included with 200 employees in the pilot.  The tally is just under 23,000 employees in the pilot.  OPM implemented the earliest (December 2011) with HUD next in January 2012 and DOE in March 2012.  The two smaller groups implemented several months later. 

How did the unions respond?  Interestingly the DOE unions did not provide any feedback regarding GEAR implementation after being briefed on the proposed changes.  (I am guessing the readers from other agencies with more active unions are probably scratching their heads on this one!)  The HUD assessment noted that there were four unions, but did not address any specific union issue or input.  OPM’s employees were represented by two unions, but again no specific information about issues or proposals is recounted in the report.

Where was there more specific information about engagement of the unions?  With the two small groups.  The VA group reported that the union suggested that the top level of performance (in their system, Exceptional) be defined so that employees had a clear target if they wished to aim for the high rating.  The agency agreed and implemented that suggestion.  The Coast Guard Base in Boston was chosen so that there was only one site with one union because nationwide implementation throughout the Coast Guard would have meant coverage of 9,000 employees at multiple sites, with nine unions, and a mix of military and civilian supervisors that rotate on a two to three year schedule.  They reported that there were extensive discussions with the union including facilitators and brainstorming sessions during which the union provided input.

GAO’s Recommendations

GAO looked at three issues.  The first was whether GEAR generally addressed key performance management practices that the GAO had identified (GAO-13-755, p.8).  (Yes, it seems a bit late in the process since the joint recommendations were issued in 2011, but who am I to criticize?)  GAO found that in most regards GEAR satisfied key practices – linking individual performance to organizational performance, incorporating organizational priorities into appraisals, making meaningful distinctions in performance, involving stakeholders, and maintaining continuity during transitions.  Two of GAO’s identified key practices were not found to be reflected in GEAR.  One was linking performance expectations to cross-cutting goals.  The pilot agencies responded that cross-cutting goals would be subsumed under agency and individual performance goals.   This seemed to satisfy the GAO finding since no particular actions were required of the agencies in response to this matter.

The other key practice which was not addressed in GEAR was linking pay to individual and organizational performance.  GAO‘s key practice and the response are as follows:

Link pay to individual and organizational performance.  Pay, incentive and reward systems that link employee knowledge, skills, and contributions to organizational results are based on valid, reliable, and transparent performance management systems with adequate safeguards. 

GEAR does not reflect this practice.  LMR work group members told us that GEAR does not specifically address pay for performance because Congress controls pay.

I’m certainly happy to know that issue has been put to bed.  It might have been better said a couple of ways.  For example, that Congress doesn’t really control pay (obviously they could pass something to change the system) but the existing Title 5 provisions do and they set the parameters on the linkage of pay to appraisal.  GAO might have said that proper utilization of within-grade increase authorities and effective design of award systems help achieve the linkage.  Apparently GAO accepted the
”Congress won’t let us do it” answer because there is no further suggestion regarding pay for performance in the recommendations for Executive Action on pp. 28-29 of the report.

Tune in next time for more about the GAO reports and the GEAR pilots.  As always, comments are welcome – particularly if you were in one of the pilot groups.  A “boots on the ground” perspective is always welcome.
 

 

 

 
Content copyright 2

February 19, 2014 FELTG Newsletter

Massachusetts has been my adopted home for almost 30 years now and it suits me well.  We’re one of the Original 13 and have managed to spawn a few rabble-rousers and I’m all for rabble-rousing.  We even had ObamaCare before the rest of you.  We just called it something else -- RomneyCare.  We have the World Champion Boston Red Sox, the Stanley Cup finalist Boston Bruins, the AFC finalist New England Patriots and the Boston Celtics.  Well, three out of four ain’t bad.

And, of course, we have our financial industry watchdog Senator, Elizabeth Warren.  It seems that the senator has a great idea on how to protect low-income consumers and maybe save the U.S. Postal Service in the process.  Warren has proposed that the Postal Service offer bill paying, check cashing and small loan services as alternatives to the payday lending industry with its astronomical interest rates.  Just another great idea from the Bay State, but I think we should take it a step further and add drive-through coffee service as well.  Look out Starbucks.  There’s nothing like an Express Mail Espresso.

At FELTG, we won’t loan you any money if you come to one of our courses or attend a webinar, but we will share with you the expertise of our instructors.  So, we hope you’ll be joining us soon for one of our upcoming events and at the end you don’t even have to give us back the knowledge you’ve gained.  Here's what’s on deck at FELTG as we get ready for the start of spring training.  There are still a few spots left for MSPB Law Week in Washington, DC, March 3-7, so get in while you can. Other upcoming DC programs include EEOC Law Week, Legal Writing Week, and the brand new Advanced Legal Writing Week and Supervisory HR Skills Week. As always, we have a number of webinars for practitioners and supervisors, so check the list of upcoming events on our website. Or, bring FELTG onsite for stellar training at your agency or union. With so many options, there’s certainly something for you!

Read and enjoy.

EH

The Gap in Medical Information Guidance
By William Wiley

Sometimes it’s a challenge for those of us in this business to fit the requirements of the regulatory agencies into the practicalities of the federal workforce. The statutory requirements and EEOC’s regulations related to employee medical information is one of those problem areas. Although EEOC acknowledges that agencies (sometimes referred to by EEOC as “employers”) have a right and a need to collect certain types of medical information in certain situations, it places restrictions on how that information can be retained and used once properly obtained (see 42 USC 12112(d) and 29 CFR § 1630.14(b)(1), (c)(1), (d)(1)):

-  The agency must treat any medical information it obtains as a separate “confidential medical record.”
-  The agency may disclose employee medical information only in limited circumstances.
-  Supervisors may be informed regarding restrictions on the work of the employee and necessary accommodations.

These requirements run into real world problems because they appear to be based on an assumption that an “agency” is somehow a separate entity from its “supervisors.” In fact, an agency is composed of frontline supervisors, upper-level managers, sometimes human resources and EEO professionals, and occasionally medical personnel. Through statutory and regulatory inference, some parts of an agency have the rights to see medical information and other parts do not.

This dichotomy characterization creates challenges. First, it is the frontline supervisor who needs to know what’s going on with the employee and who has the responsibility to take action. For example, if the employee has a disability, it’s the supervisor who has to evaluate the essential functions and decide whether the employee’s disability can be accommodated. It’s the first-level supervisor who has to propose that the employee be removed if there is a medical inability to perform. And it’s the supervisor who has to approve or disapprove sick leave requests and take any necessary subsequent disciplinary action should the employee become a leave abuser. Therefore, it is almost always the frontline supervisor who requires that the employee provide medical information.

Some agencies have tried to deal with the implied division between the agency and the supervisor by having the supervisor request medical information from the employee, but having the response to that request provided to someone else. Instead of the medical documentation going to the supervisor, the supervisor directs the employee to submit the medical information to some entity in the agency separate from the supervisor, commonly a medical-related component such as an occupational health unit. The agency’s medical personnel then review the submission, determine whether it is adequate for whatever purpose it was gathered, then they notify the supervisor of the results. The results will depend on why the medical information was obtained. Perhaps the employee has requested Family Medical Leave Act approved absence. Or perhaps the employee is requesting a disability accommodation and the supervisor needs to know the extent of the employee’s functional limitations.  In any event, the information is screened by medical personnel who maintain the confidentiality of the details of the medical information (e.g., diagnosis, prognosis, medications … that sort of thing) while disclosing to the supervisor only those aspects of the medical information necessary for the supervisor’s responsibilities (e.g., the functional limitations that comprise the employee’s disability).

And that leads us to the second challenge in the implied-dichotomy model: a number of agencies don’t have an occupational health office to act as a screen of the medical information. There are some independent agencies within the Executive Branch that have no more than a dozen employees or so, none of which is a medical professional. My last employer, the US Merit Systems Protection Board, had no occupational health unit to screen employee medical information. When supervisors at those agencies require employees to provide medical information, there is no entity within the agency to act as the screen. The information goes directly to the supervisor who then evaluates it and decides what to do.  And nothing in the Act or EEOC’s regulations specifically prohibits a frontline supervisor from doing this as long as the supervisor keeps the information confidential in conformance with the records retention requirements of separate medical files.

You and I may agree that frontline supervisors do not need to know the details of the medical information that an employee provides. And we might agree that in a perfect world, every agency would be required to identify a “Medical Information Screener” whose job it would be to screen all employee medical information, determine if it was adequate for the purpose for which it was requested, and who would then inform the supervisor of whatever it is the supervisor needs to know. But there is no such requirement. The Act and EEOC’s regulations do us a disservice by suggesting that it is a violation of its regulations for an immediate supervisor to obtain and evaluate medical information. The regulations make sense if the medical information is obtained by the agency separate from the immediate supervisor (e.g., perhaps through a periodic monitoring program or a pre-employment medical examination), but they do not make sense in the more typical situation in which a supervisor needs medical information to make a decision about an employee’s day-to-day rights and requests.

Three closing thoughts on this topic and then I’m off to do whatever it is normal people do on weekends.

-  If you are going to have medical personnel screen medical information, be sure they are trained in the law of disability accommodation, leave use, and Medical Inability to Perform removals. Their evaluation should not be a medical determination in a non-legal vacuum.
 
-  Whoever does the screening should understand that they are not bound by the employee’s physician’s conclusions. Just because the employee’s doctor says that the employee suffers from post-traumatic stress disorder and needs to telework fulltime forever does not mean you have to lie down and provide telework. You are free to probe alternative accommodations with the employee, obtain an explanation from the employee as to how PTSD symptoms are alleviated by telework, and perhaps even to challenge the diagnosis of PTSD, see EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (ADA), paragraph 11, for suggestions on what constitutes “sufficient” medical information. (Be careful; this guidance is from 2008 and predates the recent amendments, although EEOC must feel it still worthy as the Guidance is currently maintained on its website.) [Editor’s Note:  Bill is correct that the Guidance has not been updated since passage of the ADAAA.  For the most part, the Guidance remains good but watch out for portions of the Guidance that use the pre-ADAAA standards for assessing what constitutes a substantial limitation of a major life activity.  Hopefully, the good folks at EEOC will get around to updating this Guidance soon.]

-  EEOC occasionally uses the term “functional limitations” to distinguish among certain medical facts. I find it quite handy and recommend it to you. For example, if the employee submits a doctor’s note that says, “Please provide Mr. Wiley an accommodation. He has a bulging intervertebral disc that makes it impossible for him to stand more than five minutes,” the disc diagnosis is “medical information” that must be maintained confidential and the standing problem is a “functional limitation” that can be divulged to line management under EEOC’s regulations.

Plugging that Gap
By Ernest Hadley

Oh, those dreaded medical exam and inquiry provisions of the ADA, not to mention its confidentiality provision and the independent requirement that medical records be kept on separate forms and segregated from other personnel records.  Yep, I get it.  It can be difficult stuff to comply with.  That’s why every time I teach these topics, I pound the drum: “Training your frontline managers is critical.  Most often by the time a situation gets to ER, HR, EEO, or us legal-type folks, the die is cast.  If your frontline folks don’t know what they can and can’t do, they’re likely to do a whole lot in that ‘can’t do’ category.”

So, first let’s talk about a few of the reasons that’s true and then move on to a few things that agencies can do to prevent these types of violations.

Medical exam and inquiry, confidentiality and record segregation cases are, if you’ll excuse the term, black and white.  What I mean by that is that intent isn’t an element of a violation.  The agency has either complied with the statutory requirements or it hasn’t, plain and simple.  Second, a violation isn’t contingent on the employee’s response.  As an example, if a frontline supervisor asks an employee if he or she has a disability, whether there is a violation doesn’t hinge on whether the employees answers the question in the affirmative or negative.  It’s the question itself that constitutes the violation.  Finally, these provisions of the ADA apply to everyone and not just to individuals with disabilities.  Supervisors who don’t understand this latter point can end up inadvertently violating the ADAAA by thinking it doesn’t matter what you ask someone who doesn’t have a disability.  Inadvertent the violation may be, but see point No. 1.

Here are a few examples of how the rules apply and how easy it is sometimes to have inadvertent violations even where the supervisor’s intent is good and also how easily correctable they are if supervisors are well trained.  Consider the following, and for all you hardened agency folks out there, suspend your disbelief and assume that the doctor’s note is genuine, and for all you hardened employee representatives out there, suspend your disbelief and assume that the supervisor’s sentiments are sincere.

Betty has two weeks of accrued sick leave and has just been diagnosed with ulcerative colitis.  Betty presents her supervisor, Sue, with the following note from her physician:

Betty is currently under my care and will require surgical treatment.  The surgical treatment and recovery period will be two weeks, at which point she should be able to return to full duty.

Bill’s very much into the practical and so am I.  So, here’s the first practical question.  What else does the supervisor need to know?  Sue now knows that Betty is being treated for a medical condition, that condition will require hospitalization and recovery that will take two weeks and she should then be able to return to full duty.  Will knowing that Betty has ulcerative colitis in any way help Sue decide whether to grant or deny the leave?  Frankly, unless there’s some reason to doubt the doctor’s note and we’ve assumed it’s genuine for purposes of our little hypothetical -- see below for faked doctors’ notes -- Sue has all the information she needs.  In other words, Sue has the information that is job-related and consistent with business necessity -- the parameters for ADA medical inquiries -- to make her decision. 

There are all sorts of reasons why Betty may not want Sue to know the actual condition.  Maybe she feels embarrassed by the condition; maybe she doesn’t want to be the object of sympathy if her supervisor and colleagues know the diagnosis; maybe she’s just a private person who thinks it nobody’s darn business.  It really doesn’t matter what Betty’s reason is, what matters is whether the supervisor has sufficient information that is job-related and consistent with business necessity to make the required decision.

Here's what the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), has to say:

15. May an employer request an employee to provide a doctor's note or other explanation to substantiate his/her use of sick leave?

Yes. An employer is entitled to know why an employee is requesting sick leave. An employer, therefore, may ask an employee to justify his/her use of sick leave by providing a doctor's note or other explanation, as long as it has a policy or practice of requiring all employees, with and without disabilities, to do so.

Notice that the Commission says the employer is entitled to know why the employee is requesting leave but doesn’t actually say that includes the medical condition for which the employee is being treated.  Again, folks, we’re still dealing with a situation where there is no reason to doubt the authenticity or veracity of the doctor’s note.  Notice also that Betty has the sick leave she is requesting accrued and, as we teach during Absence & Medical Issues Week, if Betty is incapacitated for duty and has the accrued leave, she is entitled to use it.  There’s no need for any reasonable accommodation analysis for two reasons.  First, Betty is not requesting leave beyond that which she is entitled to and the short duration condition does not suggest that it may be a disability.

Now, let's tweak things again.  Betty has just been diagnosed with breast cancer and will need several weeks of leave for treatment that will include a combination of accrued sick leave and leave without pay.  Betty presents her supervisor, Sue, with the following note from her physician:

Betty is currently under my care.  As part of her treatment, she will need to be hospitalized for six weeks.  She will also need two weeks for recovery at the end of her hospitalization, at which point she should be able to return to full duty.

The note still doesn’t reveal Betty’s condition, but Betty tells Sue the reason she needs the treatment is that she has been diagnosed with breast cancer.  Well, there’s no violation here because Sue hasn’t done anything to elicit the information.  But she does now need to keep it confidential unless Betty gives her permission to disclose it. 

Now, as we are wont to do, let’s tweak the hypothetical a bit and, of course being the sympathetic supervisor Sue immediately asks when she looks at the note and before Betty can say anything, “What’s wrong?  Is there anything I can do?”  A violation?  Now, I don’t think so.  Even if she doesn’t use the magic words, Betty is asking for a form of reasonable accommodation and we know that for two reasons.  First, Betty is asking for leave beyond the accrued sick leave she is entitled to, and second, the duration of the treatment and recovery is sufficient to suggest that the condition might rise to the level of being a disability.  Now, what’s considered job-related and consistent with business necessity changes a bit.  The agency is entitled to sufficient information to determine if Betty has a disability and is entitled to accommodation.  So, requesting a diagnosis and prognosis to insure the condition rises to the level of substantially limiting a major life activity and is of sufficient duration to be considered a disability is job-related and consistent with business necessity.

Could Sue grant Betty’s request without asking for a diagnosis and prognosis?  Sure, the ADA doesn’t require employers to request medical information.  It simply sets parameters for when employers can ask for medical information.

Let’s now move on in our hypothetical once again.  Betty voluntarily tells Sue that she has been diagnosed with breast cancer and Sue sends out the following email to all of her subordinates.

Betty is going to be on leave for a while.  Unfortunately, she’s been diagnosed with breast cancer and will need to undergo treatment.  I think it would be a great idea and good for Betty’s morale if we take up a collection to send her flowers and let her know that we’re all thinking of her and wish her the best.

Unless the supervisor has Betty’s permission to make this disclosure, this has ADA violation written all over it.

On the other hand, here's a perfectly acceptable way to accomplish the same thing:

Betty is going to be on leave for a while.  Unfortunately, she will be in the hospital for some much needed treatment.  I think it would be a great idea and good for Betty’s morale if we take up a collection to send her flowers and let her know that we’re all thinking of her and wish her the best.

The Commission has very consistently held that in order for a disclosure to violate the ADA, it must be specific in terms of actually disclosing the medical condition. 

So, what are the so-called easy solutions here?  First, don’t ask for more than is necessary to make the specific employment decision at issue and, second, once you have medical information, keep it confidential. 

Look, I could go on forever with permutations here and how the correct response varies with different factual scenarios.   That’s one of the reason we spend so darn much time teaching this stuff and Deryn Sumner and I will be doing a webinar Dealing with Medical Issues Under the ADA, on Thursday, May 29th.

Yep, I get Bill’s point about the dichotomy the statute creates, but there are lots of good reasons for keeping medical information out of the hands of supervisors and putting it in the hands of medical professionals.  Oh, and many of those small agencies that don’t have anything in the way of a medical unit also don’t have much in the way of legal staffing either.  So, what do they do?  They obtain private counsel like me and Bill to advise and represent them in these matters.  Spending a few of those bucks on frontline supervisor training and medical advice might actually be a savings in the long run.

FLRA Policy Wishes Cannot Supersede the Law
By William Wiley

Negotiability. As we have learned in our FLRA Law Week seminars when we get to this topic in the agenda, the word "negotiability" strikes fear into the hearts of some practitioners, confusion into the minds of others, and abject boredom into everyone else in the room. The concept has no counterpart in private sector law under the National Labor Relations Act. And many would say that it is the most subjective topic to be found anywhere in the broad field of federal employment law, this writer included.

For those of you uninitiated into the arcane world of federal labor law, a quick primer. In the private sector, management has to bargain just about any proposal made by the union:

Union negotiator -- We propose that the company president come to work naked.
Management negotiator -- We counter-propose that he works in the nude while on telework. 
Union negotiator -- We declare an impasse. Strike at midnight. Picketing at dawn. Somebody call CNN!

In the federal sector, when establishing the legal rights of employees to unionize, Congress decided that there are some things that agency management simply does not have to bargain. Those topics are characterized as "non-negotiable" and the legal analysis that determines whether this characterization applies is called "negotiability."

The issues that Congress specified in the law that are not negotiable are called "management rights." For example, the law says that an agency may not bargain away its management right to hire, fire, or assign work. If a union proposed that an agency not fire anyone, the management negotiator would declare the proposal nonnegotiable because it conflicted with a specific statutory management right. Any disagreement between the union and management as to what is negotiable is resolved by FLRA if either party to the disagreement files a negotiability appeal.

To balance things out, although management does not have to bargain management rights issues, the law says it has to bargain "appropriate arrangements" for employees adversely affected by the exercise of a management right. For example, management would not have to bargain a union proposal that the agency not conduct a RIF because conducting a RIF is a management right. However, management would have to bargain a union proposal that prior to running a RIF, employees would be given two hours of official time to update their employment history so that their RIF options can be properly evaluated. Time to update an employment history would be an "appropriate arrangement" for individuals about to be subjected to a RIF.

But what if the "appropriate arrangement" proposed by the union significantly interfered with the agency's ability to exercise its management right? For example, what if in a RIF situation the union acknowledged that running a RIF was a management right, but proposed that prior to releasing anyone from his position, the employee would be given 10 years notice? Would that arrangement be negotiable as "appropriate"?

In federal sector bargaining, there are two levels at which management can declare a union proposal to be non-negotiable:

1.  At the local bargaining table when the union presents its proposal, and
2.  At the headquarters level when the agency head reviews the locally-bargained contract for illegality (if you're unfamiliar with these levels of federal sector bargaining, you'll have to come to the famous FELTG FLRA Law Week seminar to learn these basics).

Over the years as FLRA conducted its review of negotiability appeals, the Authority came up with two different standards of appropriateness. For bargaining at the local level, FLRA said that a union proposal would be an inappropriate arrangement if it "excessively interfered" with a management right. For a negotiability determination being made at the agency head review level, FLRA said that a union proposal with be an inappropriate arrangement if it caused the agency to “abrogate" its management right. In my simplistic mind, I would say that "excessive interference" was maybe seven to eight degrees of interference on a one-to-ten scale, and "abrogation" was at the nine-plus level on the same scale. FLRA was saying that it felt it was good policy that the headquarters review level should have a significantly higher burden to kick out a union proposal based on excessive interference with a management right than would a frontline local negotiator.

Recently, the DC Circuit Court of Appeals had to remind the Authority majority that its job is to apply the law, not to decide what the government's labor policies should be. Although having different standards of negotiability at different levels in the bargaining process might be good policy, the court determined that it was not good law. Finding no rational basis in the language of the statute for making a distinction between a local bargainer's authority to declare a union proposal non-negotiable and an agency head's authority to make the same negotiability determination, the court sided with the dissent of Member Beck, declared this double-standard to be improper, and remanded the case to FLRA for it to declare which of the two competing "appropriate arrangement" standards should be controlling. Treasury, IRS v. FLRA and NTEU, DC Cir. No. 12-1456 (January 3, 2014).

I’m in a Muddle over Sex
By Ernest Hadley

Got your attention with that title, didn’t I?  And now you’re expecting some salacious article, aren’t you?  Shame on you!  This is a family publication.  Besides, it’s highly unlikely that salacious article would have made it past your agency’s spam filter anyway.  But not to entirely disappoint this is an article about sex; that is, sex as in gender, though there’s a bit of sex in it, too.  Am I peaking your interest and teasing sufficiently before growing to a point?  (Bonus points for anyone catching the Shakespeare reference there.)

So what this article is really about, more or less, is a case I came across recently -- Complainant v. Social Security Administration, EEOC Appeal No. 0120131065 (January 24, 2014).  (By the way, have I said recently how stupid I think having all cases captioned “Complainant” is?)  Here’s what happens.  The complainant, for lack of a better name, is an African-American female.  She goes to work one day and a coworker, again for lack of a better name, who is an Hispanic female lifts up the complainant’s skirt and grabs her buttocks.  She, the coworker that is, then laughs and says, “You thought it was the security guard, didn’t you?”   Got the picture?

So, the complainant files an EEO complaint alleging a hostile environment based on race and sex.  After an investigation, the agency issues a final decision finding no discrimination because it took prompt and effective corrective action and, therefore, was not liable for any hostile environment.  With me so far?

The Commission affirms the FAD and notes that “Complainant has not described any action that was either based on or related to her race and hence any claim of harassment based on race must fail.”  I’m good with that, but then it goes on to say “[w]ith regard to sexual harassment, however, the actions described are severe enough to qualify as prohibited sexual harassment.”  Again, I’m good with the sufficiently severe part, but where’s the sex?  No, I’m serious.  Pulling up someone’s skirt and grabbing her buttocks may well be sexual, but where is there any indication in this scenario that the conduct is based on sex as in gender?

I think there’s something missing here.  The complainant has to demonstrate that the unwelcome conduct is based on a protected category -- in this instance gender.  Now, the Commission told us almost two years ago in the Macy case -- Macy v. Attorney General, EEOC Appeal No. 0120120821 (2012) —that transgender status is protected as part of Title VII’s prohibition on sex discrimination.  (How dumb would that sentence sound if I said “in the Complainant case?”)  It keeps coming up just short of saying the same thing with regard to sexual orientation but has defined gender stereotyping in such a way that it really encompasses all complaints based on sexual orientation.   For example, in Veretto v. Postmaster General, EEOC Appeal No. 0120110873 (2011), it said the complainant, who alleged he was harassed after announcing his marriage to another man, was not only alleging sexual orientation discrimination not covered by Title VII, but gender stereotyping covered by Title VII for failure to conform to the traditional male stereotype.  I don’t really get the distinction since a male being attracted to other males strikes me as the essence of being gay.  And, then there was Castello v. Postmaster General, EEOC Appeal No. 0120111795 (2011), rev’d on recon. 0520110649 (2011), applying the same logic to a claim by a lesbian complainant.

I’m on board with all that.  What I’m looking for the in Complainant case is that same connection to sex as in gender.  Granted, pulling up a woman’s skirt and grabbing her buttocks is a really stupid thing to do whether you’re male or female.  And, of course, it’s sexual.  In my estimation, the perpetrator should have been fired instead of made to watch a few sexual harassment videos and transferred so I question the Commission’s conclusion that the agency’s action was effective.  But that’s beside the point because we don’t get to that question unless there’s a hostile environment within the purview of Title VII.

I’m just not getting the connection here and that’s why I’m in a muddle about sex. 

Oh, yes, the bonus points?  A Midsummer Night’s Dream, Act 1, Scene 2 and the following exchange between Peter Quince and Nick Bottom:

QUINCE:  Here is the scroll of every man's name, which is
thought fit, through all Athens, to play in our
interlude before the duke and the duchess, on his
wedding-day at night.

BOTTOM: First, good Peter Quince, say what the play treats
on, then read the names of the actors, and so grow
to a point.

Fake Doctors’ Notes
By William Wiley

In companion articles in this edition of our FELTG newsletter, we discuss some of the challenges with the EEOC’s regulations when it comes to actually applying the Commission’s interpretation of the Americans with Disabilities Acts and the amendments appurtenant thereto (this is my Continuing Legal Education credit certification month; I have to use a lot of legal-sounding words so the California bar actually thinks I paid attention in those classes). In this article, I want to talk about one of those hush-hush little “secrets” of real life in the federal workplace, a topic that some people simply wish did not exist, and which EEOC doesn’t really help with: fake doctor’s notes.

“What!” you exclaim. “Falsified medical certification! Why, no one would do that in the federal government and it would be really hard to do even if you tried.”

Oh, Pollyanna. You are so sweet. And I bet you still put that tooth under the pillow when one falls out and wish really hard when you see the first star of the evening, knowing that’s the kind of wishes that get granted. I hate to break it to you, Kiddo, but there’s some bad stuff out there in the real world, and fake medical certification is part of it.

Well, pray tell; where would one obtain said fraudulent medical excuses if one were to seek such documentation, say to justify a reasonable accommodation request or to support a request for sick leave or excused absence under the Family Medical Leave Act? Why, I do declare; is it possible that such malfeasance might be located where all the cool stuff can be found these days … on the INTERNET?

And of course, the answer is yes. Google “fake doctors notes” sometime and you’ll find that there are a number of electronic entrepreneurs who have figured out that there’s money to be made in selling customized medical certification to those in need (along with fake resumes, pretend former-employers, doctored-up performance evaluations … all kinds of neat pieces of paper to trick your boss into thinking things about you that aren’t true.) [Wiley note to Ernie and Deb; if this training business doesn’t work out …]. So if you think it’s hard to get a medical certificate that says you have elephantiasis and must telework so you can constantly be near an unlimited supply of peanuts, drop $59.95 on a web service and you’ll be able to print out a fine looking doctor’s note tonight.

Alternatively, if you’re a cheapskate as am I, if you know how to manipulate the fonts on a word document and insert a graphic you copied from a website, you can make yourself some fine looking letterhead and thereby construct your own medical documentation. Why just today I received my weekly delivery of FOIAed documents from MSPB and therein (California bar CLE credit = 1 minute) I found a medical certificate on nice-looking easily-duplicated Department of Veterans Affairs letterhead attesting to the fact that Ed Employee suffers from post-traumatic stress disorder and should be allowed to displace all his more senior co-workers and work only the day shift, thereby avoiding assignment to the dreaded night shift. The note is four sentences, no legal mumbo-jumbo, and is signed by someone identified as a “clinical psychologist.” You could easily crank out a hundred of these things in about an hour, one for every person in your book club if that’s the kind of person you are.

And don’t get me started on real doctors who will create relatively genuine medical certification. Fortunately, most physicians are fine, upstanding, ethical people who would never stretch a diagnosis to accommodate the wishes of a patient. But if you think that there are none out there, you missed the big 60 Minutes expose on Medicare fraud last year and haven’t been reading about the bogus disability claims filed after 9/11 in New York. I personally observed a physician sit down next to a patient in a busy waiting room many years ago and overheard a conversation that went something like this:

MD: Bobby Joe, I hear that they’re giving you a hard time at work.
BJ:  [In a slow drawling voice] Yessir, they’s making me do all sorts of things I don’t want to do.
MD:  Would you like me to write a note for you?
BJ:  Why, I would be mighty appreciative of any he’p you can gives me.
MD: [Whipping out a note pad to start writing] What should the note say?
BJ: Well, suh, the note should say, [speech cadence doubling] “Bobby Joe has increased thirst, frequent urination, unexplained weight loss, increased hunger, and tingling of his hands and feet. His hemoglobin A1c test -- also called HbA1c, glycated hemoglobin test, or glycohemoglobin -- is elevated above clinical maxim levels of tolerance. He suffers from cold sweats, trembling hands, intense anxiety, and a general sense of confusion. As an accommodation of his disability, he should be allowed to telework with flexitime, ad infinitum.”
MD: Wait, slow down. I’m a doctor, not a damned stenographer! [Mutual laughter as the scene fades to black]

As Ernie and Gary Gilbert teach in FELTG’s exciting EEOC Law Week seminar, an individual meets the legal definition of having a “disability” if she has:

1. A physical or mental impairment
2. That substantially limits
3. One or more major life activities

The Americans with Disabilities Act Amendments Act was intended by Congress to reduce the focus in a reasonable accommodation situation away from an argument over whether the employee meets the definition of disabled to whether the employee’s functional limitations can be accommodated. I have no problem with that intention when it comes to broadening the definition of what constitutes a “substantial limitation” or a “major life activity.” However, if it means that EEOC expects agencies to take whatever medical information the employee provides without an independent means of ascertaining the validity of that documentation, agencies will be “accommodating” some people who are not truly disabled. Or maybe not even really sick.

And Real Ones
By Ernest Hadley

I’ve got no tolerance for folks who would falsify medical documentation in ways that Bill describes above, or in any other way for that matter.  I have an equal amount of tolerance for so-called medical professionals who will write whatever a patient tells them to, regardless of whether there’s medical support for what they write.

Unlike Bill though, my lack of empathy has virtually nothing to do with the fact that an agency may get duped into giving an accommodation to an employee who doesn’t deserve one.  No, my lack of empathy is what such conduct does to the many individuals that do have legitimate disabilities.

You see, I accepted long ago that when it comes to agency training, Bill’s more popular than me.  First, he’s just a more likeable guy than I am.  (What’s that old blues song?  “Only my mother loves me and she could be jiving me, too?”)  But I also get that Bill’s the one who tells you how to get rid of folks who can’t or won’t conform their conduct or performance to acceptable standards and then hide behind some faux medical condition as an excuse, and I’m the one who chides you for not doing what’s required in the workplace for those with legitimate needs due to a medical condition.

I raise all this because there is a flipside to employees who falsify medical documentation and that’s the agency ER, HR and legal-type folks who see falsification in every piece of medical documentation submitted by an employee.  If you think these folks don’t exist than you’re as much of a Pollyanna as those who would believe that employees never falsify medical documentation.  I know these folks exist because they self-identify every time I teach a course or webinar on medical exams and inquiries, the ADA and reasonable accommodation.

And it’s because both sets of these folks exist that other folks who struggle to overcome the physical and mental limitations of their disabilities every day have one more hurdle to overcome—the perception of others that they are looking for something they don’t deserve.  And so, at some agencies, they are required to jump through endless hoops being asked for more and more medical information and having the medical information they provide questioned.  In addition to not getting the needed accommodation, they’re humiliated by the process.

The answer here isn’t that agencies should be forced to accept all medical documentation at face value any more than the answer is that agencies should be permitted to independently verify all medical documentation submitted by employees.  As in most cases, the answer lies somewhere in the middle.

Nothing in the EEOC’s regulations or guidance precludes an agency from questioning the validity of medical documentation when it has a reason to do so.  (Yes, that’s my emphasis.)  Again going back to what the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), has to say about the issue:

Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation. Documentation also might be insufficient where, for example: (1) the health care professional does not have the expertise to give an opinion about the employee's medical condition and the limitations imposed by it; (2) the information does not specify the functional limitations due to the disability; or, (3) other factors indicate that the information provided is not credible or is fraudulent. If an employee provides insufficient documentation, an employer does not have to provide reasonable accommodation until sufficient documentation is provided.

(The bold is the Commission’s, the italics are mine.)

So, it’s really quite simple.  An agency can question the validity of an employee’s medical documents if it can point to some factor that calls the validity into question.  And, the fact that it comes from the employee’s physician is not, standing alone, one of those factors.  Again, here’s a little nugget from the Enforcement Guidance:

An employer should be cautious about relying solely on the opinion of its own health care professional that an employee poses a direct threat where that opinion is contradicted by documentation from the employee's own treating physician, who is knowledgeable about the employee's medical condition and job functions, and/or other objective evidence. In evaluating conflicting medical information, the employer may find it helpful to consider: (1) the area of expertise of each medical professional who has provided information; (2) the kind of information each person providing documentation has about the job's essential functions and the work environment in which they are performed; (3) whether a particular opinion is based on speculation or on current, objectively verifiable information about the risks associated with a particular condition; and, (4) whether the medical opinion is contradicted by information known to or observed by the employer (e.g., information about the employee's actual experience in the job in question or in previous similar jobs).

So, by all means, go after the SOB’s -- that’s a legal term -- who perpetrate this kind of fraud and, in the process, give good people a bad name.  But don’t, in the process, give good people a bad name.

The Paternity Test Results are In!
By Deborah Hopkins

The third time’s the charm: it’s the final installment of interview tips and tricks to live by. In the previous two FELTG newsletter articles I discussed interview skills, dos and don’ts, plus a few strategies to help you land that dream promotion. Today, I’d like to cover some supplementary suggestions to assist you during your next big interview.

Body language says it all. In a past life, I taught a college course in nonverbal communication. Nonverbal communication not a science, but most scholars agree that at least 70-80 percent of what you say during an interview isn’t your words at all. You are constantly sending messages whether you like it or not, so it’s wise to be aware of what you’re emoting to the person across the desk or conference table. Here are the top body language signals to be aware of: eye contact; smiling; upright posture (Tip: sit toward the front edge of your chair and lean slightly forward to indicate engagement and interest); fidgeting or making other manipulations such as clicking a pen or jingling pocket change; playing with one’s hair; crossing the arms over the chest; using too few or too many hand gestures. There’s so much to remember, I know, but these are behaviors you can practice before an interview, perhaps during meetings and even phone calls.

Potpourri category. Get business cards from everyone you meet so you can send follow-up notes to each of them. Eat before you get to your interview  -- but don’t eat anything garlicky or oniony that may revisit at an inappropriate time. Don't look at your watch during the interview, because it makes you look like you’re in a rush. Ask the hiring manager to show you the workspace so you know where you’ll be working. At the conclusion of the interview, let the interviewer know if you want the job -- and if you don’t -- because that saves everyone a lot of time.

Don’t make these (common) mistakes. If you don't get called back after the interview, you may already know why you weren't the top pick. But, many of us leave an interview feeling positive about the experience, so when we don’t get the call we’re left baffled and disappointed. Hiring managers are paid to be judgmental of job candidates, so stay away from the red flags that stop them from making you an offer. Here are just a few behaviors that approximately HALF of all hiring managers have seen during an interview: appearing disinterested during the interview; dressing inappropriately; acting arrogant and overconfident; badmouthing current or previous employers; answering a cell phone or texting during the interview. Yes, texting during an interview. Can you imagine?

Don’t make these (uncommon and horrendous, but-actual real life) mistakes. Some mistakes are minor and can be overlooked, because after all, we’re all human and things happen. I once sat down to interview a candidate for a job and during the interview my stomach growled so loudly that the interviewee couldn’t help but laugh. I didn't take offense, but instead saw that she had an appropriate sense of humor, and the interview continued.

However, if you've made one of following mistakes in an interview (what I might call an epic fail), here's some advice: don’t do it again. These are some of the most outrageous mistakes candidates made during job interviews, as reported by hiring managers to BusinessInsider

(http://www.businessinsider.com/worst-job-interview-mistakes-2014-1?utm_content=buffercc85a&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer):

• Applicant warned the interviewer that she "took too much valium" and didn't think her interview was indicative of her personality
• Applicant acted out a Star Trek role
• Applicant answered a phone call for an interview with a competitor
• Applicant arrived in a jogging suit because he was going running after the interview
• Applicant asked for a hug
• Applicant attempted to secretly record the interview
• Applicant brought personal photo albums
• Applicant called himself his own personal hero
• Applicant checked Facebook during the interview
• Applicant crashed her car into the building
• Applicant popped out his teeth when discussing dental benefits
• Applicant kept her iPod headphones on during the interview
• Applicant set fire to the interviewer's newspaper while reading it when the interviewer said "Impress me"
• Applicant said that he questioned his daughter's paternity
• Applicant wanted to know the name and phone number of the receptionist because he really liked her

See? After reading the above, you probably realize your last interview flub wasn’t so bad. If nothing else, learn from your mistakes and vow to do better the next time you’re in the interview hot seat. And with that, we conclude the series of Interview Tips to Live By. Go forth and acquire that dream job - as long as you’re sticking with us in the federal employment law arena. We’d miss you too much if you left us for someone else.

 

 

 


 

Feb. 5, 2014 FELTG Newsletter

Only eight more shopping days until Valentine’s Day and for all of you out there wondering what to get me, let me just say that I believe chocolate is a health food and bourbon is the nectar of the gods.  And the best part is that they go well together.

We occasionally have something with chocolate for an afternoon snack at our courses.  Sorry, we tried serving bourbon once and, well, we don’t talk about what happened any more, mostly because no one really remembers.  If you’re really interested, though, in finding out some things worth remembering, here are a few of FELTG’s upcoming events. Take a look at the agendas for the upcoming DC programs MSPB Law Week March 3 - 7, EEOC Law Week April 7 - 11, or Legal Writing Week May 5 - 9. Or, join us in Honolulu for Civil Service Week May 12 - 16. Also, check out our upcoming webinars on Performance Problems and Attorney Fees, or our multi-part supervisor training series on holding employees accountable. And if all else fails, bring one of our instructors to your agency or union, and he or she will teach you whatever you want to learn about!

Back to our regularly scheduled newsletter. Read and enjoy.

EH

Another Visit to a Potential Problem Area
By William Wiley

We’ve warned you about this issue before from a theoretical position. Now we’re starting to see the practical implications of the problem.

The issue is the multi-level reviews of tentative disciplinary actions that some agencies have put into place in an effort to contort themselves into conformance with the new rule that MSPB has developed regarding consistency of penalty. As you’ve heard us whine many times, the line of cases that began in 2010 that says that a penalty selection has to be consistent with other penalties meted out for similar misconduct ANYWHERE IN THE AGENCY GOING BACK MAYBE FIVE YEARS is extremely harmful to agency management’s ability to hold employees accountable.

In response to this line of decisions, a few agencies have developed multi-tiered reviews of proposed removals (thereby taking away from the frontline supervisors the ability to make decisions) in the hope that with many people involved at many levels, perhaps the agency can defeat a claim of disparate penalties. Here’s a typical review scheme being used in some agencies that have gone for the multi-level approval process:

1.  Supervisor proposes removal
2.  Employee Relations Specialist (ERS) advises
3.  ERS team leader concurs
4.  Supervisory ERS agrees
5.  Director of Human Resources concurs
6.  Staff attorney in legal approves
7.  Supervisory attorney concurs with recommendation
8.  Various important and powerful line managers and advisors thereto at HQ say it’s a “Go!”.

The removal approval process in your agency might not be quite this extreme, but you probably have at least a couple of people involved in the decision. With your own agency’s review process in mind, take a look at a document demand I recently received from an Office of Special Counsel (OSC) attorney/investigator. OSC is involved in the case because the employee claims the removal is actually in reprisal for whistleblowing.

Dear Mr. Wiley:

Thank you for your response.  As I mentioned in my last email, I would like to request additional information as part of OSC’s investigation into the allegations of possible prohibited personnel practices.  This Request is made pursuant to the authority contained in 5 U.S.C. §§ 1212, 1214, 1216 and 1303 and in Civil Service Rule 5.4 (5 C.F.R § 5.4).  Please provide the following information:
           
1.  The names and position titles of the individuals who participated in Mr. X’s removal;
2.  All notes, documents, and correspondences (including emails) pertaining to the decision to remove Mr. X;
3.  All the information and documents considered in the decision to remove Mr. X;

And do you know what OSC is going to do with all those documents generated by all those people? That’s right; screen every one of them looking for evidence of a prohibited personnel practice (PPP). Hey, that’s their job, and they do it very well. In addition to screening documents, OSC may also be interested in interviewing and taking sworn depositions from all those individuals who comprise the discipline review and approval process. Wouldn’t you if you were assigned to root out a PPP and your job was to protect the poor victim?

We have said it before, and we will say it again. We wish that our business was not like this. Frankly, I think we have a better civil service when we have more people involved in making the decision to remove someone. Doing so brings a lot of great minds into play with a variety of experiences, thereby reducing the chance that a single rogue supervisor will do something unwarranted. Unfortunately, the reality of our business is that the more people you involve in a decision, the more people who have to defend what they did (before OSC or elsewhere), and the more likely it is that somebody along the way will say something -- if I may use a legal term -- stupid.

So if you feel you must maintain a multi-layered approval process for removal actions, it’s perfectly legal to do so. Just be aware that you are not contributing one gosh darned thing to the effort to ensure penalty comparability, you are divesting frontline management of the accountability to run the place, and you will be bussing a lot of folks over to the local OSC office (or to the employee’s attorney’s palatial suite) to be deposed, if that’s what they want you to do.

If you think this is a non-issue, it is. At least it is until you get a nice little document demand from one of those rascals over at OSC or a discovery request from a smart appellant’s attorney prior to a hearing. And if you need even more convincing, consider this. When I warn agency officials in our seminars about the challenges they create for themselves when they set up multi-layered review processes, my good friend and co-presenter Brother Ernie Hadley (who has made a right-decent living for 25 years representing employees) just stands there with a big grin on his face, encouraging class participants to ignore my advice and to develop discipline approval procedures with as many review levels as humanly possible.

Need I say more? I certainly hope not. If you don’t get it by now, may OSC have mercy on your reviewing officials.

Watch Those Family Histories
By Ernest Hadley

One of the questions I sometimes get when talking about the Genetic Information Nondiscrimination Act is on the order of, “So what?  I mean, my agency doesn't go around collecting genetic information on employees and applicants.”  And it’s easy enough to think that.  After all, when’s the last time you were asked for a DNA sample as part of the job application process?

The problem is that it’s a lot easier for an agency to collect genetic information than you may think.  GINA defines genetic information as including “the manifestation of a disease or disorder in family members of such individual.”  42 USC 2000ff(4).  That, standing alone, doesn’t seem to mean very much and it doesn’t, or wouldn’t, but for the Commission’s GINA regulations.  Elaborating on what a manifestation of a disease or disorder in family members means, the Commission says “Manifestation or manifested means, with respect to a disease, disorder, or pathological condition, that an individual has been or could reasonably be diagnosed with the disease, disorder, or pathological condition . . . For purposes of this part, a disease, disorder, or pathological condition is not manifested if the diagnosis is based principally on genetic information.”  29 CFR 1635.3(g).

So, how does an agency end up with genetic information given this definition?  All the agency has to do is ask for a family history.  That’s exactly what Founders Pavilion, Inc., a former New York nursing and rehabilitation facility, did as part of its post-offer, pre-employment medical exams of applicants -- a move that recently cost the company $370,000 to settle a civil action brought by the EEOC.

Asking for a family medical history is reasonably likely to result in the disclosure of the manifestation of a genetic disease or disorder of a family member and violates GINA.  That’s part of my long-standing beef with 5 CFR 339.104, OPM’s medical qualification regulations that have been in effect since 1978, which continues to list a history of medical conditions as documentation that can be requested.  That, along with most of the other things listed in the regulation like x-rays, lab results, MRI’s and clinical evaluations, walks agencies right into a GINA violation as well a violation of the Americans with Disabilities Act.

And, as I’ve said before this stupid -- yes, it is stupid -- regulation starts with the admonition that “Accommodation means reasonable accommodation as described in 29 CFR 1613.704.”  My oldest daughter, who graduated from college almost two years ago, was two when Part 1613 was replaced by Part 1614. 

But, agencies can end up with genetic information even if they don’t ask for it directly as the Founders Pavilion did.  Health care provides routinely include a family history section in their reports.  Why?  Well, to those folks, family history can be particularly important in diagnosing or treating a condition.  So, when the agency asks the employee for documentation of a medical condition, the employee goes to the provider.  Instead of writing a response specifically for the employer, the provider simply gives the employee an existing medical report which, of course, includes a family medical history and “viola,” we have a violation of GINA.

The Commission does give employers an out, however.  If the following language is included in a request for medical information, an employer is not liable under GINA even if the health care provider does include family history in the information provided:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

29 CFR 1635.8(b)(1)(B).

In some ways the shame for Founders Pavilion is that it did get things right up to a point.  It did not request the family histories until after it had made an offer of employment.  The ADA permits medical exams and inquiries of applicants but only after they are given conditional offer of employment; that is, if the employee fulfills the conditions of the offer, he or she has he job.  So, Founders Pavilion requested the family history at the appropriate point in the application process, but then blew it by asking for too much information.

That’s one of the big “so what’s” of GINA and it’s something to watch for because addressing GINA violations is one of the six national priorities in the EEOC’s Strategic Enforcement Plan.

The Most Frequent Question I Hear
By William Wiley

We here at FELTG are honored to get all sorts of participants in our FELTG seminars, from wage grade union folks trying to figure out how to do a better job representing employees to MSPB Board members, trying to figure out what planet we come from. But I have to say with all due respect to my colleagues, I think that my favorite group to work with is frontline managers.

The first reason is that if they’ve signed up for one of our seminars, they almost always want to be there. It’s not otherwise part of their job like it is for legal counsel and HR specialists. These are usually smart people with a thousand other things to be doing to run the government who choose to come listen to the tricks of this crazy business of federal employment law.

The other reason that I really like working with real-world supervisors is that a number of them are in difficult situations with difficult employees that they are trying to hold accountable. To make it worse, some of them have been picking up relatively dodgy legal advice from the advice-sphere that permeates the federal workplace (like dark matter). When we here at FELTG show them the light, they are often so darned grateful that they spring for the beer at the end of the session. And to Ernie, Deb, and me, that really means a lot. Heck, we wish they’d spring for the beer DURING the session. Why should only one hour in the day be happy?

Invariably when I get into talking about the difference between a misconduct removal and an unacceptable performance removal, once they begin to appreciate the differences between the two procedures, one of the participants will say, “My (fill in the blank) advisor told me that it’s better to take a misconduct removal than a performance removal. It sounds like you’re saying that it’s really the other way around, that a performance removal is preferable to a misconduct removal. Why are you wrong?”

Oh, those little troublemakers. Me, wrong? On a matter of employment law? Ha, ha, ha, I think to myself, mindful that there was a time that I thought that a 752 misconduct action was indeed preferable to a 432 performance removal. Then, as I developed a little experience, around the fall of 1979, I began to see the light. When Congress invented the 432 procedures, they were trying to make it easier for agencies to remove nonproductive employees. And they did a good job of it if you understand how a 432 removal differs from a 752 removal:

1.  To win an appeal in a performance removal, a supervisor needs to present only “substantial” evidence. To win an appeal in a misconduct removal, the supervisor needs a “preponderance” of the evidence. By legal definition, substantial is a LOWER evidentiary burden than preponderance. In a misconduct case, the judge has to agree with you for the removal to be sustained. In a performance case, the judge does not have to agree with you, she only has to conclude that you may be right (even though she might really think that you may be wrong).

2.  In a misconduct removal, the supervisor has to defend the penalty by proving by a preponderance of the evidence that it is reasonable; i.e., by completing a Douglas Factor analysis. In a performance removal, the supervisor does NOT have to do a Douglas analysis and defend the penalty. The Board can lower the penalty in a misconduct removal to a suspension, but it cannot mitigate a performance removal. And today especially, we are having a big problem with our current MSPB in how the members evaluate Douglas factors.

3.  In a misconduct case, you have to use the evidence that has already occurred IN THE PAST; e.g., what exactly did the employee say when he allegedly made the threat, who witnessed it, how did the threatened person respond, etc. In a performance case, the supervisor gets to create the evidence IN THE FUTURE as the PIP progresses. Trust me; it’s a lot better to create good evidence prospectively than it is to retrospectively try to prove facts from evidence that was generated randomly.

So when I get that suggestion in a class that I might be wrong about 752 v. 432, I just give a little mental hug to the poor supervisor who has been given inexperienced advice. I’m happy to explain to just about anybody who will listen why a 432 action is a much better way to go (in most situations) than a 752 action if you have a choice.

Then, I put a big crease in his graduation certificate, as a visible reminder that he should never doubt me again. Hey, nobody ever said I’m a nice guy.

Clarifying the Counselor’s Role
By Ernest Hadley

Ok, last issue I had some not so positive things to say about the proposed revisions to EEOC Management Directive 110, so here is something positive about the revisions that are currently undergoing an internal agency comment process.  The Management Directive would provide some much needed clarification on the fact-finding duties of the EEO counselor in the precomplaint phase.  This is an area that I spend some considerable amount of time focusing on when I do EEO counselor training and it’s good to see that, at least on this point, the Commission and I are in agreement.

By regulation, counselors have 30 days from the request for counseling to complete the precomplaint phase.  That’s not much time especially because the request for counseling can, depending on the agency’s process, precede the initial interview by several days, further cutting into the time the counselor has.  Time wasted on unnecessary fact gathering adds to the counselor’s workload and also takes time away from critical duties such as early resolution efforts.

Part of the problem is that the existing guidance has been somewhat vague on the nature of counselor fact-finding.  The reality is that a complete investigation will take place if a formal complaint is ultimately filed.  So, for years, I’ve been preaching that counselors need to engage in limited fact-finding geared to gather what I call the “qualifying information,” e.g., is contact timely, is this an employee or applicant of the agency, is there some underlying employment action or term or condition of employment involved, is the employee alleging a basis within EEO purview, and that the remainder of fact-finding should be focused on those things that might assist in resolution of the complaint. 
 
Well, here’s what the proposed guidance has to say about the role of the counselor in terms of fact-finding:

Once the EEO Counselor has determined the basis(es) and claims adhering to the guidance set forth below, s/he should conduct a limited inquiry. The purpose of the limited inquiry is to obtain information to determine jurisdictional questions if a formal complaint is filed and is performed regardless of whether the aggrieved person subsequently chooses ADR. The limited inquiry also is used to obtain information for settlement purposes if the person chooses EEO counseling over ADR, or does not have the right to choose between EEO counseling and ADR.

While the scope of the inquiry will vary based on the complexity of the claims, the inquiry is intended to be limited and is not intended to substitute for the in-depth fact finding required in the investigative stage of formal complaint process. The EEO Counselor must at all times control the inquiry. If the aggrieved person or agency personnel raise objections to the scope or nature of the inquiry, the EEO Counselor shall seek guidance and assistance from the EEO Officer or Director. If the EEO Counselor has problems with the inquiry, s/he should immediately notify the EEO Officer or Director.

There’s also an appendix dedicated to suggestions on how the counselor should conduct the inquiry.  This really is a positive addition to MD-110.  Now, about that eight-hour annual training requirement. . . . You really think that’s enough?

The Employee Who Emails God
By William Wiley

Those with experience in this field have seen it sooner or later: the employee who has been soooo horribly mistreated and is soooo much in pain that he just has to tell his story and ask for help from everyone he can think of. Because all those important people must be deeply concerned about his personal welfare and actually have been standing by waiting for his request for help:

“Oh, look; an email with HIGH PRIORITY in the subject line! It appears that poor Master Wiley is being mistreated by his mean old nasty supervisor. That darned supervisor is reprising against him and creating a hostile environment by actually requiring poor Master Wiley to be at work on time and do his job. Well, we’ll have none of that in this government. Quick: get our emergency response team of lawyers, counselors, and investigators right down there to collect the evidence we need to get rid of that supervisor. Thank goodness Master Wiley brought this horrible situation to our attention.”
(And then President Obama returns to running the country.)

Back in the 70s when I started this work, I’d see this in the form of a letter written by a disgruntled employee to the President or some member of Congress. The letter was sometimes dribbled down the chain to little old me to respond to as the frontline guy who knew the situation. And my responses were almost always the same: “Dear Mr. President: Thank you for bringing this difficult situation to our attention. As the Regional Representative for the Department of the Navy, I can assure you that we treat all of our employees with respect, dignity, and in conformance with all applicable laws. I will personally investigate this matter and inform you directly should there be any merit to these claims.” My response thereby gave the President cover to respond that he had looked into the matter, I could then get on with my attempt to stack my business cards into a multi-storied house of cards, and life was good.

Then, along came email. All of a sudden we went from an unhappy employee with pen and paper sending off an occasional letter to an unhappy employee being able to electronically cc: hundreds of agency managers, members of Congress, reporters, bloggers, members of the clergy, and blessed deities with personal complaints about alleged workforce mistreatment. Fortunately, most all of those folks have better things to do than get involved with an employee’s personal problems delivered via a cc: on an email, but still – the disruption to the agency could warrant action.

For those who have completed our famous MSPB Law Week seminar or participated in our onsite seminar and webinar series for supervisors entitled UnCivil Servant: Holding Government Employees Accountable for Performance and Conduct, you know the answer to this situation. Give the employee an order to stop bothering people with emails about personal problems (i.e., create a rule). Once that rule is put into place, if the employee breaks the rule, you initiate the engine of progressive discipline, and that will take care of that.

Surprisingly, every now and then I run into an agency employment law practitioner who thinks an agency cannot restrict employees this way; that somehow, the employee has a “right” to email God and everybody about every little perceived slight and injustice that occurs in the workplace, regardless of how disruptive that might be. Well, that’s just not the law. If the employee’s scatter-shot emails (or phone calls or carrier pigeons or whatever) are disruptive, certainly you can direct him to stop. Your nexus to government efficiency is that he is bothering a bunch of people with his personal problems. Federal employees have proper channels for raining personal gripes and grievances, but that doesn’t mean they get to bug everybody they think might help them

There are two caveats to this, however. First, our friends over at OSC get real testy if they believe that an agency is doing something that has a chilling effect on an employee’s right to report waste, fraud, and abuse. To protect yourself, you probably want to include the following statement on any order to stay within channels:

“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.” 5 USC 2303(b)(13).

OSC might take the position that ANY restriction, even with this statutory warning, has a chilling effect. However, if I were an agency representative, I would not want to give that up without going to the mat with the Board. It would be just crazy to say that any employee at any time can disrupt anyone about any perceived slight, as long as the slight fell within the definition of what constitutes whistleblowing (come to our MSPB Law Week seminar if you don’t know what that is). The law itself says it’s OK to enforce a shut-up policy as long as you include the above statement.

The second caveat comes into play relative to the content of the complaining emails that the employee-with-too-much-free-time is sending around. If the employee’s complaints are allegations of civil rights discrimination or disclosures that constitute whistleblowing, then ordering the employee to stay within proper channels can be the basis for a claim of retaliation, either before EEOC or OSC. That shouldn’t stop you, of course. Just be prepared to defend your order by establishing that the emails are disruptive and that the employee is free to pursue complaints through the channels provided for by law.

And now, I have to get back to my stack of cards.

How Not to Handle an Official Time Request
By Ernest Hadley

EEOC regulations, at 29 CFR 1614.605(b) provide that a complainant who is an agency employee is allowed a reasonable amount of official time to file and process a complaint and, if represented by another agency employee, the representative also is allowed a reasonable amount of official time for representational purposes.

As general rule, complaints over official time are not handled through the EEO complaint process at 29 CFR Part 1614.  See, e.g., Culpepper v. Postmaster General, EEOC Appeal No. 01A61407 (2006) (claims of denial of official time should not be processed under section 1614.108 because focus is not on agency’s motivation in denying official time, but whether agency violated Commission’s official time regulations).

The proper procedure for denying a request for official time is set forth in MD–110 at 6–17:

If the agency denies a request for official time, either in whole or in part, the agency must include a written statement in the complaint file noting the reasons for the denial. If the agency’s denial of official time is made before the complaint is filed, the agency shall provide the complainant with a written explanation for the denial, which it will include in the complaint file if the complainant subsequently files a complaint.

If otherwise unresolved at the agency level, the administrative judge can address the issue if a hearing is requested or it can be addressed by the Office of Federal Operations on appeal.  In fact, the Commission also has case law indicated that since the right to official time for representational purposes flows from the complainant’s rights, it is the complainant who is aggrieved by the denial of official time and not the representative. See, e.g., Zych v. Secretary of Air Force, EEOC Appeal No. 01A11131 (2002).

Complaints over official time filed under Part 1614 procedures should be dismissed for failure to state a claim.

But, in Complainant v. Social Security Administration, EEOC Appeal No. 0120130682 (January 17, 2014), the Commission found that the agency erred when it dismissed a complaint over denial of official time by a federal employee representing another federal employee in an EEO complaint where the basis alleged was reprisal for protected activity.  The complainant representative in that case alleged that a supervisor refused to sign an official time form starting he was too busy and also refused to allow the representative to leave the form with him for signature later.  He further alleged that the supervisor made him wait 30 minutes to sign the form and then asked him “Whose time are you on, yours or ours?”  When the representative responded that he was on agency time, the supervisor replied “I know how to handle this.”  Finally, he alleged that his own supervisor threatened to place him on AWOL when he returned to his workstation because of the length of time he was gone.

So, why accept this claim for denial of official time while rejecting others?  Actually, there is a difference and that difference is that the allegations involve more than just the denial, or in this case, the delay in granting official time.  Here, the complainant alleged that the agency combined other actions with that delay, such as the comments made the first supervisor and the threat of AWOL by the representative’s supervisor.  That the Commission found was reasonably likely to deter protected activity, such as engaging in EEO representation.

So, if you’re going to deny those official time requests, do so with a smile.

Do I Really Have to Send a Thank You Note?
By Deborah Hopkins

In the last edition of the newsletter, I provided a few tips on interview practices if, for whatever reason, you find yourself looking across a table or desk at an interviewer. Since there are far too many suggestions to fit into one article, I’ve added a Part II, if you will. So, just for the interviewee, I present to you a few additional matters to consider.

Don’t underestimate the value of eye contact and a firm handshake. There are all kinds of studies -- scientific and non-scientific -- on first impressions in interviews. According to numerous reports and surveys, about half of all employers know within the first five minutes of an interview whether a candidate is a good or bad fit for the position. It only takes an additional 10 minutes for another 40 percent to determine if a candidate has staying power, which means that almost 90 percent of hiring managers know within the first 15 minutes if the person they’re interviewing will fit the job posting within the organization. Put another way, the initial handshake/pleasure-to-meet-you introduction is the one and only chance you get to make a first impression. During and after the handshake, maintain bouts of eye contact throughout the interview. If that feels too intense, look at the spot directly between the interviewer’s eyebrows, as this will give the illusion of eye contact without making you feel like a creeper (that’s a legal term).

Now, let’s go back to the handshake for a moment. At introduction, a firm handshake, combined with direct eye contact and a slight smile, sends a message of confidence, respect and competence. In researching for this article I came across one study that reported 27 percent of interviewees offered weak handshakes when meeting hiring managers, while five percent were too forceful and gripped too hard come handshake time. Wow, who knew how serious a simple handshake could be? Just run a Google search if you need tips on how to properly shake someone’s hand -- there are numerous articles (some quite lengthy) on the topic. Also, be sure to shake the interviewer’s hand and say thank you at the conclusion of the interview.

Don’t provide a generic resume. Resumes take work to properly complete. Resumes should be specifically targeted to the job for which you’re applying. I suggest take a few extra minutes to be sure your resume is organized in a way that highlights the experience and education relevant to the job for which you’re interviewing. If it’s a training position, put your training experience front and center. If it’s a management position, highlight your supervisory experience. Bring extra hard copies of your resume to the interview, in case you’re surprised with a panel of interviewers who haven’t been given copies. Also, keep a copy for yourself in case you need to reference resume specifics the interviewer may ask you to speak about. If you believe the results from a recent CareerBuilder study, 39 percent of hiring managers had recently interviewed someone who showed up to an interview appearing completely uninformed about the organization and/or the desired job. A specialized resume will reduce your chances of being part of that 39 percent.

Follow-up. Always, always, always follow up an interview with a thank you message to the interviewee, preferably within 24 hours (or one business day) of the interview. In our increasingly informal and technologically-driven world, an email is probably appropriate. But, if you really want the job, a handwritten thank you note will say more about your character and sincerity than will an email.

Special note: Even if you decide you hate the organization, don’t want the job, and never want to set foot in the building again, send a thank you note. If you’re not interested in the opportunity, it’s polite to say so, provided you use professional language (for example, “I don’t think this position is a good fit for me.”) because the world of federal employment law is small, and you may run across the interviewer again, at another agency. Never burn your bridges!

Stay tuned to the FELTG Newsletter for one last edition on interview tips, including what to wear (and what not to wear) and common mistakes you’d do well to avoid in your quest for that next position.


 

January 22, 2014 FELTG Newsletter


Whoo, hoo!  We have almost nine full months with a budget that includes a modest -- can one percent be accurately described as “modest”?; other words come to mind like “paltry” -- raise for federal employees.  My memory is not what it used to be, but I’m having a hard time remembering when we last had such a stretch. But my memory is good enough to recall when years, even fiscal years, had 12 months.  Oh well, the years do seem to get shorter as I get older and I guess this is just one more example of that.

But, the good news is that now you can plan to attend your favorite FELTG training.  Unlike Congress, we’ve got a full 12-month year planned and here are some of our upcoming events.  Webinars continue to be a big draw for practitioners and supervisors alike, so check out our upcoming sessions on Performance Problems and Attorney Fees, or our multi-part supervisor training series. If you prefer face to face, take a look at the agendas for the upcoming DC programs MSPB Law Week March 3-7, EEOC Law Week April 7-11, or Legal Writing Week May 5-9. Or, join us in Honolulu for Civil Service Week May 12-16. With so many options, something’s sure to be a perfect fit for your training needs.

For now, it’s time for some news. Read and enjoy.

EH  

Green Light for Agency Defense Counsel
By Ernest Hadley

I’d like to think that I have just enough in the way of humility to admit when I’m wrong.  Of course, I’m also just arrogant enough to believe that the fact that a federal agency takes a different position on an issue doesn’t mean that I’m wrong.  It just means that I was on the wrong side.

And so it appears to be with the case with the proper role of agency defense counsel in the EEO process.  Proposed revisions to EEOC Management Directive 110 have been circulated to agencies for comment and the Commission has given the green light to agency defense counsel to actively participate in an investigatory process that is supposed to be “impartial and appropriate.”  29 CFR 1614.108(b).

Let’s start by stating what this isn’t about.  This isn’t about the integrity of agency defense counsel.  It’s about the integrity of a system that lets an agency investigate its own alleged misconduct and, in some cases, issue a final decision on those allegations.  And, as readers of our humble little publication know, I’ve been nothing if not consistent in my position that that agency defense function has no part in conducting an impartial investigation. 

To be honest, the proposed rules for participation of agency defense counsel during the counseling and investigative stages of an EEO complaint are an attempt to “split the baby” by allowing agency defense counsel to participate but limit their role.  But before we get to the proposed rules -- we’ll do that in the article below entitled The Rules of the Game -- let’s talk about the Commission’s rationale for the rules.

If there’s a legal rationale underpinning the new rules, it isn’t provided in the draft of MD-110.  There’s no reference to statutes, legislative history, regulations or case law.  What we get in the introduction to the new rules is simply this:

It is important to note that prior to the issuance of the final agency action, the agency is responsible for the fair, impartial processing and resolution of complaints of employment discrimination. Only when the employee opts to move the matter to the Commission or U.S. District court, does the process become adversarial for the agency. The primary role of an agency representative in the EEO process is to provide diligent representation to the agency in the adversarial portion of the process.

Federal agencies thus have a unique role to play in ensuring equal employment opportunity. First, every agency head has a statutory obligation to eradicate unlawful employment discrimination that may occur within the agency. This anti-discrimination responsibility is what requires federal agencies to administer a fair and impartial investigative process designed to determine the validity of complaints, as well as to employ affirmative efforts to root out discrimination and ensure equal employment opportunity. The Director of the Office responsible for the agency’s EEO programs within the agency (or other comparable representative) is designated by the agency head to carry out this obligation.

At the same time, the agency head has a fiduciary obligation to defend the agency against legal challenges brought against it, including charges of discrimination. The General Counsel of the agency (or a comparable legal representative) is designated by the agency head to carry out this obligation.

Some may view the agency’s investigative process as inherently biased because the agency accused of discrimination is the same agency that is charged with administering the EEO investigative process. But the statute requires that an agency conduct a fair and impartial investigation and issue a “final action” on a complaint of discrimination, and Commission regulations establish a comprehensive system through which agencies must issue these final agency actions. Nevertheless, as the Commission’s regulations make clear, and as this management directive reinforces, a federal agency head is obligated to protect both the integrity of the agency’s EEO process and the legal interests of the agency.

Hard to argue with the general proposition.  Any agency head has the dual obligation of enforcing the laws of this country and shielding the agency from financial liability. But the mere fact that there are competing obligations does not mean they are equal obligations.  Call me crazy, and many have, but I happen to think the obligation to shield the agency from financial liability is subsidiary to the obligation to comply with the law and enforce it when there’s noncompliance. 

Isn’t that what the first paragraph of the Commission’s introduction says?  During the agency processing phase, the obligation is to develop an impartial and appropriate factual record.  In other words, the obligation is to determine if the agency has complied with the law. The adversarial process and obligation to shield the agency from liability doesn’t kick in unless or until the case moves to the EEOC or U.S. district court.  Presumably at that point, the agency has made a determination based on an impartial investigation that it is indeed in compliance with the law. 

Seems to me that’s what I’ve been saying all along.  There’s no role for the agency defense function when the agency is investigating itself to determine if it engaged in discrimination.  But somehow without any legal analysis, or at least any that were given an insight into in the proposed MD-110, the Commission uses that rationale to come to the conclusion that agency defense counsel do have a role in both the counseling and investigative process.

But that’s okay because the proposed MD-110 beefs up the language requiring that the EEO director be a direct report to the agency head, a requirement that’s been in MD-110 since 1999 and we all know how that’s worked out.  (By FY 2011, only 74 percent of EEO directors reported to the agency head.)  Oh yes, and the EEOC will monitor compliance with its regulations and management bulletins and may, if it does not secure compliance by writing to the agency head, publicize noncompliance by “using, among other means, publication in the Annual Report to Congress, a press release, posting some form of notice of non-compliance on the Commission’s public website, or any other means the Chair deems appropriate.” 

Of course, there probably won’t be any mention of the agency head by name since that would be contrary to the new policy of not telling us anything about who’s involved in the complaint decisions of the Office of Federal Operations.

Maybe this is for better minds than mine.  I take back what I said at the beginning of this article.  The Commission didn’t split the baby.  They gave it two heads.  And, who wants a two-headed baby?

The Rules of the Game
By Ernest Hadley

For those who just finished my rant in Green Light for Agency Defense Counsel, or decided to skip it and just find out what the proposed rules are, here we go.  The rules are set out in a series of 16 questions and answers.  Here are some of the highlights or lowlights, depending on your perspective.

The first rule is nothing new.  Agency defense counsel can participate in settlement efforts during precomplaint counseling.  (Oh, and by the way, the Commission still refers to this as the “informal stage” even though its regulations call it precomplaint counseling and there’s nothing “informal” about.  Don’t timely initiate counseling, and raise all the matters with the counselor, there goes your “formal” complaint.  Doesn’t sound very informal to me.)  The current version of MD-110 allows for both the complainant and agency to be represented during ADR and, as I’ve said before, that’s as it should be.  The official binding the agency in a settlement should have access to legal counsel who can advise on the potential and extent of agency liability, affirm that all the negotiated terms are included and clearly expressed in the agreement and that the agreement is legally binding.

Agency defense counsel are permitted to accompany a “management official” to meet with an EEO counselor if the management official so requests.  “The agency representative may advise the management official of his or her rights and responsibilities and represent the agency’s interest in facilitating resolution of the complaint.”  But the counselor should not defer to counsel or permit counsel to interfere in the performance of the counselor’s duties.  (There’s absolutely no mismatch between an EEO counselor and the Office of General Counsel.)

A couple of no-brainers.  Agency defense counsel are not permitted to be involved in decisions about whether to accept or dismiss a complaint or to determine the bases and issues in a complaint, and may not give advice to the EEO office “unless requested to do so by the EEO office.” 

As a general rule, agency defense counsel does not have a right to review documents collected by the investigator because “[t]he investigative process is a non-adversarial fact finding process.”  The investigator has the right to determine what documents are necessary for an appropriate investigation and has the discretion to disclose documents and testimony to witnesses gathered during the investigation, including the affidavits of the complainant and other witnesses.  “However, if a witness is a management official, such official may consult with agency counsel for information to assist the official in responding to the inquiry.”  (Hmm?  Just wondering here what “information” agency defense counsel has that would assist the witness who, presumably, is the one who knows what happened.  If counsel has such “information,” wouldn’t he or she be a witness?)  Also, an agency cannot require that management officials’ responses be reviewed or approved by agency defense counsel.  (And wondering here if that means agencies can simply make known that it would be greatly appreciated if such review or approval were obtained and what effect that might have on the decisions of such management officials.)

And, as with precomplanint counseling, agency defense counsel may accompany the Responding Management Official (RMO) to the investigative interview with the same parameters including the admonition that the investigator “should be careful not to defer to the counsel/representative during the interview.”  And, I have the same questions about the practicality of that admonition.

“Management officials” who are not RMO’s can also be accompanied by agency defense counsel to the investigation interview if the management official so requests.  The proposed rule does make clear that counsel represents the agency and not the manager and “if a manager requests an agency representative, the agency should consider whether the agency’s and manager’s interests coincide.”  Management officials can be advised, but agency defense counsel “may not ask questions, make objections, or otherwise play a defensive role for the agency.”

Curiously, agency defense counsel may not accompany “non-managerial” employees who are not the subject of the complaint to the investigative interview.  Those employees can bring private counsel to the interview at their own expense.

Why do I think it’s curious?  Here’s the scenario.  A management official who has nothing to do with the action at issue – didn’t take it, didn’t recommend it, maybe even had no knowledge of it – is asked to meet with the investigator in a retaliation case.  That official has heard the RMO make disparaging comments about employees who have filed EEO complaints.

What does that official want to know from agency counsel?  I would suspect something along these lines.  “Do I have to meet with the investigator?  Do I have to respond to his or her questions?  Do I have to tell the investigator what I know or only respond to the investigator’s questions?  What are the consequences if I don’t tell the investigator what I know?  What are the consequences if I do tell the investigator what I know?’

Now what does the non-managerial employee who has overheard the same comments want to know?  I’m thinking roughly the same things.

So, either the answers to these questions fall into the range of personally advising the management official or the answers fall into the range of advising an individual on his or her responsibilities to the agency.  If this is personal advice, why should a manager get it at agency expense while the employee has to pay for it?  And, I have basically the same question if it advises on the responsibilities of being an agency employee.

Agency defense counsel may not review a Report of Investigation before it’s issued, but if the complainant is given an opportunity to review then so must agency counsel.  Agency defense counsel also may not review a final agency decision before it’s issued.  “Each agency must provide sufficient resources for its EEO office in order to ensure the legal sufficiency of its final actions. As noted above, the optimal situation is for the EEO office to have sufficient internal legal resources to draft final agency actions.”  Agency defense counsel can be involved in decisions on appealing decisions of EEOC administrative judges and asking the Commission for reconsideration of an appellate decision.

Them’s the rules, or at least the proposed ones.

One final thing I’m wondering.  How much input did EEOC defense counsel -- yes that agency also has to investigate and defend itself against EEO complaints -- have into these proposed rules?  If you ask me, the rules seem weighted in favor of defending the agency and against getting an “impartial” investigation.

EEOC Ethics 101 Quiz
By Ernest Hadley

Time to sharpen your pencils, or your pens if you prefer, though that can get kind of messy.  It’s time for a FELTG ethics quiz.

So under the proposed rules for agency defense counsel in the draft revisions to MD-110, counsel may advise management officials who are not RMO’s -- i.e., are not accused of engaging in discrimination.  Are the communications between agency defense counsel and these management officials protected by privilege?

The most obvious answer is that those communications would be protected by attorney-client privilege.  Of course, the most obvious answer isn’t always the correct answer.  Both the District of Columbia and Virginia bars have disciplinary rules and ethics opinions dealing with who in a government agency is a “party” for purposes of the prohibition against counsel contacting an opposing party without the knowledge and consent of agency counsel.  Those rules would suggest that the answer is that the privilege does not extend to such communications.

Let’s start with the basics.  In order for there to be an attorney-client privilege both things must exist.  There must be both an attorney and a client. Virginia Rule of Professional Conduct (RCP), 4.2, Comment [7] provides:

In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons in the organization’s “control group” as defined in Upjohn v. United States, 449 U.S. 383 (1981) or persons who may be regarded as the “alter ego” of the organization. . .

That “control group” is, in turn, defined as “any employee of an organization who, because of their status or position, have the authority to bind the corporation.”  Id.

D.C. Bar Opinion No. 80 reaches a similar conclusion defining a “party” to litigation as:

[O]nly those persons who have the power to commit or bind the government with respect to the subject matter in question, whether it be the initiation or termination of litigation, execution or approval of a contract, issuance of a license, award of a government grant, or a rulemaking function. . .

D.C. Bar Opinion No. 129 specifically refers to an employment discrimination case against a large corporation, and the government is treated as a corporation under the rules, and notes that the officials who can bind the corporation in litigation are likely not the same officials who made the contest employment decision.  The opinion says:

[I]nterpreting [the rule] to protect all employees of a large organization would be too restrictive and would conflict with the policy of unhindered and inexpensive access to non-party witnesses in the litigation context. Such a . . .rule would require a party to expend greater time, money, and resources in obtaining the same information through informal interviews. These manifest burdens, we believe, outweigh any potential harm that might flow from permitting counsel to interview employee-witnesses of the sort involved in this inquiry.

So, if we apply these rules and opinions to communications between agency defense counsel and management officials who are not part of the “control group,” it would seem there is no attorney-client relationship and, therefore, there could be no privilege.

Agency defense counsel can also review affidavits from management officials who are not RMO’s.  Are any recommended changes subject to privilege?  Well, not by attorney-client privilege, so next on the checklist is the attorney work product privilege.  Here, I don’t think we need to get into any detailed analysis of the precise parameters of that privilege -- i.e., where is the line between the thoughts and impressions of counsel about the litigation and factual information?  As a general rule, privilege can’t be asserted selectively.   If it’s waived with respect to one, it becomes fair game for all.  So, it would seem sharing any comments on the affidavits of management officials who are not RMO’s with those officials, the privilege is waived.

Getting out the old FELTG 8-ball, which doubles as our crystal ball, I foresee discovery disputes and maybe that’s something the Commission should address up front if the proposed rules become final.

Finally, Some Comparator-Employee Common Sense
By William Wiley

As you recurring readers are aware, this writer had been mightily freaked out by the Obama Board’s modification of the way it will consider a penalty selection defense relative to Douglas Factor 6, the consistency of the penalty on appeal with other penalties meted out by the agency. Starting with a Terrible Trilogy of cases issued in 2010, followed by the addition of an even worse case from 2011 (thereby making for a Freaked-Out Foursome), the current Board majority has undermined what had been a basic tenet of discipline for nearly 50 years. Until 2010, a supervisor was required to be consistent within the chain of command in the selection of a penalty. Post Trilogy/Foursome, the supervisor’s penalty selection was supposed to be consistent with penalties imposed throughout the entire agency, a prospect that anyone with three minutes of employment law experience would know is humanly impossible.  [Editor’s Note:  For those of you new to FELTG’s Newsletter, Bill is referring to Lewis v. Department of Veterans Affairs, 2010 MSPB 98 (2010); Woebcke v. Department of Homeland Security, 2010 MSPB 85  2010); Villada v. U.S. Postal Service, 2010 MSPB 232 (2010); and Raco v. Social Security Administration, 2011 MSPB 87 (2011).]

In our FELTG seminars, webinars and onsite trainings, and on occasion in this newsletter, we have provided what little guidance we could come up with for agencies in defending a penalty selection when the employee alleges that a comparator employee received a lesser punishment:

1.  Argue that the comparator employee indicated by the appellant is not a valid comparator, that either the circumstances or the misconduct are substantively different.

2.  Show that even though there is a comparator employee who received a lesser penalty, there were other comparator employees who received the same penalty as on appeal.

3.  Establish proof that even though the agency had in the past administered lesser penalties for the misconduct on appeal, it had more recently put employees on notice that in the future it would administer a more significant penalty.

We heard from some agencies we work with that they were considering bumping up penalty decisions to HQ levels, thereby hoping to ensure agency-wide consistency. We offered that even though this might be possible, doing so takes away from front-line management the authority to manage and also opens up those HQ penalty-deciders to allegations of Title VII discrimination, whistleblower reprisal, and being called as fact witnesses in Board proceedings. Those are expensive wages to pay in any agency.

Other agencies with which we work have tried to ensure consistency of penalty by developing agency-wide databases of penalties imposed for various acts of misconduct. We counseled that this was a relatively fruitless effort because the Board will compare misconduct, not just penalized misconduct. In three of the four early lead cases, the Members had looked to employees who engaged in misconduct, but were not penalized at all. An agency would need a nationwide database of misconduct to deal with this issue, and that’s just not possible.

Although we had no case law to base it on, and being absolutely desperate for some way to deal with this craziness, we counseled in our seminars that maybe -- just maybe -- the better approach was not to go out and look for comparator employees, but to limit the exposure of the deciding official (DO) just to penalties within his span of control and his personal knowledge. Although it runs counterintuitive to the agency-wide database approach, we thought that there might be hope in letting the DO make his or her decision based on personal knowledge and experience rather than based on what other managers in other parts of the agency might have done instead. There was a singular flicker of comment in one lead Board decision that the DO was held to what another supervisor had done, even though he did not know about it, because his advisors at HQ had knowledge of the lesser penalty. We reasoned that maybe a lack of knowledge can actually be a positive factor in the right situation.

And so holdeth the Board. In a recent opinion and order in which the appellant alleged that a comparator received a lesser penalty, the Board ruled that not only was the comparator not exactly a comparator (see no. 1, above), but also that the DO testified;

-  He did not know of the penalty administered in the other case, and

-  Had he been the DO in the other case, he would have imposed a removal instead of the lesser penalty.

So after three years of comparator employees driving us all a little bonkers, the Board has spoken some common sense. Not only is an agency allowed to argue that it believes that a penalty administered in the past was too lenient, but also that the DO in the current appeal had no knowledge of a lesser penalty being administered. Yes, hold deciding management officials responsible for acting in a consistent manner, but don’t place on them the obligation to survey the entire agency each time they are asked to select an appropriate penalty. What a sensible way to close out 2013 for all of us who believe in the civil service and the protections it provides for deserving employees. Thank you, Board. Davis v. U.S. Postal Service, 2013 MSPB 100 (December 31, 2013).

Jury Still Out on Mixed Motive Retaliation Analysis
By Ernest Hadley

It's just a footnote, but one that still leaves the door open.  The footnote, No. 8 to be precise, in Complainant v. Office of Personnel Management and Social Security Administration, EEOC Appeal Nos. 0120120901, 0120123038 (December 2, 2013), kicks the can down the road on whether University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), holding that the “but for” test applies to private sector retaliation cases and a mixed motive analysis is not available, applies to the federal sector.  Because the Commission found that the complainant had not presented any evidence of retaliatory motive, it also found that the complainant had not established liability “even under the more lenient standard allowing for liability . . .....”

As you may recall, Nassar was one of two decisions handed down by the Supreme Court at the end of its last term -- Vance v. Ball State University, 133 S.Ct. 2434 (2013) being the other -- that rejected the EEOC’s view of Title VII law.  Prior to Nassar, the view of the EEOC and several other federal courts to consider the issue was that the complainants need only show that protected activity was a significant or motivating factor in the employer’s action and that the employer could limit its liability to declaratory relief and attorney fees if it could show by a preponderance of the evidence that it would have taken the same action even absent retaliation.  Nassar raised the bar with a 5-4 majority holding that the employee must show that but for the protected activity the employer would not have taken the action.

Of course, Nassar was decided under a provision of Title VII that applies to the private sector, 42 USC 2000e-3(a).  The federal government is exempt from that provision and, from a plain language point of view, the federal sector provision, 42 USC 2000e-16, includes race, color, sex, national origin and religion and makes no mention of retaliation.  Courts, however, including the Supreme Court, have assumed that a general prohibition on discrimination includes retaliation.  See Gomez-Perez v. Potter, 128 S.Ct. 1931(2008) (general prohibition against discrimination on the basis of age in the federal sector includes protection against retaliation).

But section 2000e-16 and 2000e-3(a) don't have the same wording.  Section 2000e-3(a) makes it an unlawful employment practice to discriminate against an employee or applicant “because” that individual has filed or participating in an EEO complaint or opposed a discriminatory employment practice.  Section 2000e-16 says that all personnel actions in federal agencies shall be made “free of any discrimination” based on race, color, sex, national origin and religion.

So, for the time being, we wait to see what standard the Commission will apply in federal sector cases.  But the issue is on the EEOC’s radar.  All we need to do now is wait for the right case.

One’s Person’s “Clarification” Is Another Person’s “Reversal of Precedence”
By William Wiley

OK, kids, let’s begin this article with one of the favorite tools in our seminars, the famous FELTG Pop Quiz! Here’s your hypothetical scenario to start off today’s program:

The agency reassigned the employee from the day shift to the evening shift. The employee failed to show up for the evening shift (i.e., the employee initiated the absences). QUERY: Has the agency involuntarily suspended the employee?

Those readers who have been around a while or who have graduated from the world-renowned FELTG Absence & Medical Issues Week seminar are probably focusing on who actually initiated the absence: the employee or the supervisor. For over 30 years the case law has been that if the employee absents himself, then it IS NOT an involuntary suspension, but if the supervisor prevents the employee from coming to work, then it IS a constructive suspension (and if the self-inflicted absences exceed 10 work days, the Board will reverse the “action” as an appealable adverse action taken without the due process procedures found at 5 CFR 752).

Applying that old case law principle to this scenario, you would conclude that in this case, the employee initiated the absences by deciding not to come to work, and therefore there is no constructive suspension. And according to our current Board members, you would be wrong. In a decision intended to “overrule, clarify and modify inconsistent case law,” the Board recently held that sometimes an employee-initiated absence may well be a constructive suspension. So all of you seminar graduates, pull out your handout materials and make a pen-and-ink modification to wherever it is that we discussed this ancient principle of Board law. Because it no longer holds. See Bean v. U.S. Postal Service, 2013 MSPB 96.

Of course, the devil is in the details, and for our hypothetical situation we did not give you all the details from the Bean case:

-  Bean’s psychologist recommended that he work only daylight hours due to a medical condition that could be triggered by darkness.

-  The agency accommodated this medical condition for two years before making the reassignment to the later shift.

-  The agency stopped the accommodation because of a determination that the assignment violated the collective bargaining agreement. 

Now some employees would have seen a conflict in interpreting a CBA and felt that a grievance or arbitration would have been in order. Others would have seen a possible failure to accommodate a disability and filed a discrimination complaint with EEOC. Bean, wisely, filed an MSPB appeal, a forum that adjudicates not only civil service law, but also discrimination law as well as the interpretation of CBA provisions relative to an action on appeal. In Bean, the Board remanded the case to the judge so that Bean could be provided a jurisdictional hearing to determine whether the agency could have accommodated his disability in spite of the CBA provisions.

Therefore, the new standard for determining whether employee-initiated absences might actually comprise a constructive suspension is this: Did the agency take an action so that the employee “lacked a meaningful choice” as to whether he came to work? And as I read Bean, if there is an accommodation of a disability that the agency could have provided, but did not, then it has denied the employee of a meaningful choice, and any resulting absences are in fact a constructive suspension.

Let’s noodle it through. The supervisor assigns the employee a new job. The employee responds, “My doctor says I should not do that kind of work. I’m going home.” If the employee’s medical condition constitutes a disability, the agency had better do some relatively quick accommodating (or documenting why it cannot accommodate) or it will be found to have constructively suspended the employee without procedures.

Lessons Learned

Union readers take note. An MSPB appeal is a much faster and cheaper alternative to arbitration or an EEO compliant.

Management readers also take note. You should be in good shape if you can do the accommodation three-step (come to our EEOC Law Week seminar April 7-11 if you need help with this) within a couple of weeks. If you do, you will either have accommodated or documented why you cannot, thereby dodging the “meaningful choice” bullet.

However, if the employee is slow in responding to your requests for medical information and you cannot complete the accommodation analysis in two weeks, you may want to consider proposing an indefinite suspension using 752 procedures. Even though the Board has not specifically approved a situation like this as a basis for an indefinite suspension, the rationale is aligned with the three situations in which MSPB has found indefinite suspensions to be warranted, see Gonzales v. Department of Homeland Security, 2010 MSPB 132. Something like, “By this memo I am proposing that you be suspended indefinitely until you either provide the medical information I have requested so that I can evaluate your medical limitations for the purpose of accommodation, or you return to work.” This stopgap approach at least gives you defensible grounds should the employee challenge the due process aspect of the continuing absences.

What do you think? Will the Board fault the employee for resorting to self-help rather than either challenging management’s interpretation of the CBA through a grievance or by filing a discrimination complaint alleging failure to accommodate?

Nah, I didn’t think so, either.

EEOC and Special Counsel Enter New MOU
By Ernest Hadley

Last week the EEOC and the Office of Special Counsel entered a new memorandum of understanding with regard to cases to be referred to OSC for possible disciplinary action.

The new MOU provides that:

• EEOC shall refer to OSC for potential enforcement action cases in which the EEOC finds that an agency or an officer or employee thereof has discriminated against any employee or applicant for employment.

• EEOC shall refer to OSC for potential enforcement action cases in which an agency fails to comply with an EEOC order and any other case or matter that the EEOC believes warrants enforcement by OSC.

• If the EEOC has indicated that appropriate action has not and will not be taken by the employing agency, OSC may investigate the matter to the extent necessary to determine whether there is sufficient basis for initiating disciplinary action.

The MOU is not all-inclusive and the EEOC may refer other matters to OSC.  A complete version of the MOU is available at www.eeoc.gov/laws/mous/index.cfm.

Can I Facebook Stalk a Future Supervisor?
By Deborah Hopkins

It’s January -- the time of year when people make (and promptly forget) resolutions for the coming months. Take the gym as an example. I’m a Spinning® instructor at several gyms and studios in northwest Washington, D.C., and when January comes around, the classes fill up with people who’ve made resolutions to get healthy, exercise more, etc.   [Editor’s Note:  Who would have thought that “Spinning” is a registered trademark and does that mean I can no longer say, “My head is spinning” after editing the FELTG Newsletter and, if so, do I have to capitalize it?] You might know that I’m a big fan of exercise, so I fully support these resolutions, but one thing I will say: if you make a fitness resolution, be specific. “Get healthy” is ambiguous and difficult to measure. “Attend two fitness classes every week” is specific and measurable. But, since this is not a fitness newsletter, I suppose I should move on to the topic at hand.

You probably have a number of friends, family members or colleagues who, after burning up their vacation time over the recent holidays, are ready to start looking for new employment. What better time than January to spruce up the old resume, check out USA Jobs, CareerBuilder and Monster, and (hopefully) dust off the lucky interview suit and take it out for a spin? After all, it’s cold outside and it’s dark by 4:30 p.m. -- if you live on the east coast, anyway -- so you might as well take advantage of those evening hours on the couch, and search for available employment.

In a previous life, I was Career Services Coordinator at an institution of higher education, and was responsible to help potential and past graduates find gainful employment. One of my favorite job responsibilities was preparing students and grads for professional interviews. Some of the lessons I taught fall squarely into the category of common sense, but others may not be so obvious, especially to people who haven’t been on an interview in a while. And so I’m happy to present a few initial tips on nailing your next interview.

Be specific. I’m guilty of doing the “mass blast” where I’ve sent a generic resume out to anyone and everyone who might have a job I’m suited for. There are a few problems with sending out a nonspecific resume (to be addressed in a later article), but one I’d like to address is when a recruiter from a company receives that resume, and calls for a phone interview. The last thing you want is to take this call but not remember which companies you’ve applied to, or which job the recruiter is discussing. In this situation, there’s a great risk of appearing incompetent and unprepared.

While it’s slightly different in the world of federal employment -- hopefully anyone who gets a call about an HR Specialist job at FBI at least knows what an HR Specialist does, and what the FBI is -- the specifics of job positions should be at the forefront of your mind, so you can effectively respond to the call as it comes in.

Do some recon. When you schedule an interview, know where you’re going, and how long it will take you to get there. Be on time for the interview but don’t be too early. If you arrive more than 15 minutes before the interview time, don’t go in right away; sit in your car, or walk around the block. Arriving too early makes you look overeager, and also puts pressure on the interviewer who knows you’re waiting. It can also make you as the interviewee feel anxious, the longer you wait.

Do some research about the agency or company where you’re interviewing. What is the organization’s mission, and who are its customers? Know these answers before you arrive. It’s also a good idea to see what you can learn about the person you’ll be interviewing with. Google, LinkedIn, Facebook, news outlets, and the organization’s website provide a wealth of material. Be careful in how you use this information; it’s more for background knowledge than anything. Telling a potential supervisor that you recognize her from her Facebook profile picture is NOT the way to land a job.

Be on your best behavior. The interview begins from the minute you enter the facility. There are often parking garage cameras, people watching you while you wait in the lobby or take the elevator. Be nice to security personnel, the front desk receptionist, and any employees you come across, from the minute you arrive until the minute you leave. Be aware of your own actions and your surroundings. Smile, take a deep breath, and go show ‘em what you do!

There are a number of additional factors to consider when interviewing for a new job -- too many to put into one article -- so consider this the start, and look for additional interview tips in coming editions. And as we say at the end of every FELTG training seminar, Good luck out there.

A Closing Thought
By William Wiley

This month, we celebrate the 131st anniversary of the Pendleton Act that established our federal civil service and the 35th anniversary of the implementation of the Civil Service Reform Act that set many civil servant rights into law. Although we here at FELTG are only lowly government contractors, we are honored if we have in any way helped you ladies and gentleman who have taken The Oath do a better job of running our country. Without you, we would not have a society.

 

 

January 8, 2014 FELTG Newsletter

I’m trying to decide between two evils.  Should I sit here and try to come up with yet another introduction to FELTG’s world famous, or infamous depending on your point of view, newsletter?  Or, do I get myself bundled up and go out and begin shoveling the 10 inches or so of snow that has fallen and continues to fall?  Well, I’ve never gotten frostbite from typing . . .

It's 2014 and we’re back with our first edition of the New Year and it’s packed with case news, opinions and advice.  Whether that’s good or bad we leave to you, but we stand behind this newsletter with our money-back guarantee.  That’s right.  Don’t like the newsletter?  We’ll refund your entire purchase price.  In fact, we’ll double it.  Of course, that offer is void where prohibited by law, which the last time I looked was in all 50 states and the District of Columbia.

What is not prohibited by law, and in fact even sanctioned with CLE’s from the Commonwealth of Virginia and the State of California, are FELTG’s training courses.  So, here are some things that we have coming up in the next few weeks. If you hurry, you can still get a spot in next week’s DC program, Absence & Medical Issues Week. If you’re more of a planner, though, then you can join us in February for the brand new Advanced Legal Writing Week, in Mach for MSPB Law Week, in April for EEOC Law Week, or in May for Legal Writing Week. Or, take a trip to Honolulu for Civil Service Week, also in May. You can find details on program locations, dates, and prices on our website.

So, on to the newsletter, and read and enjoy.  Now, about that snow. . .

It’s Alive! FLRA Finally Gets a Full Complement
By William Wiley

After a year of not being able to do much of anything because of two empty seats on the three-membered Authority, President Obama finally got his replacement nominees through the Senate confirmation process, and we now have a complete complement of Authority members.  Carol Waller Pope has returned as FLRA Chair and Patrick Pizzella has been appointed as a Member.  And man, does it look as if it’s going to be a lively bunch of members. I’ve been at this work approaching 40 years now, and I’ve never seen anything like this from any of the members on an oversight board: CSC, A/SLMR, OPM, FLRA, MSPB, or EEOC.

The first decision issued by this “new” Authority doesn’t plow much ground that hasn’t been plowed before. An arbitrator issued an award that violates GSA’s government-wide regulation relative to limits on reimbursement for moving expenses, so the Authority wisely set aside the arbitrator’s excess. Happens all the time because many arbitrators are unfamiliar with the constraints of federal law. DHS, CBP and AFGE, 67 FLRA No. 26 (December 18, 2013). But what doesn’t happen all the time is that one of the Authority members took the occasion of his first decision to lay out his philosophy of federal labor relations in general. In a long separate Concurring Opinion, Member Pizzella articulated what he expects to be his major focus during his term as an Authority member:

-  “The taxpayer is the FLRA’s biggest stake holder” and Member Pizzella intends to interpret the law in a manner consistent with an effective and efficient government.

-  The costs for cases before the Authority and before labor arbitrators are borne by the American taxpayer; “It is essentially all taxpayer money – all the time.” In contrast, the costs associated with private sector labor cases are borne by labor unions and businesses. “I cannot ignore this fact” while carrying out the responsibilities of an Authority member. (Hang in there with me, dear reader; do not stop after each point to analyze the actual factual basis – we are looking for the overall labor relations philosophy embodied in this opinion).

-  Federal employees were paid more than $155 million taxpayer dollars in 2011 doing union work on government time. Taxpayers are thereby footing the bill for “no shortage of cases that many would describe as frivolous.”

-  Of the 4,300 allegations of unfair labor practices brought in FY 12, only 0.003% resulted in a finding that a ULP had actually been committed. (Look, I TOLD you to stop being tied to reality with each of these points; it slows down the overall absorption of the principles being laid out for us). “It is, therefore, axiomatic to me that the filing of what could be considered frivolous grievances unwisely consumes federal resources, including time, money, and human capital; serves to undermine ‘the effective conduct of [government] business.’ [sic]”

-  Agencies need to engage in good faith bargaining, unions need to avoid frivolous grievances, arbitrators need to avoid issuing circular incoherent awards, and the Authority needs to refrain from endorsing arbitration awards that are circular and incoherent.

Well, my goodness. Welcome to the party, Member Pizzella. You certainly have let the federal labor relations community know from whence you come. On behalf of all of us who over the past three decades have bargained in bad faith, filed frivolous grievances, and issued or supported incoherent arbitration awards, let me say that because of your Concurring Opinion we now see that we need to change our ways. Yes, from this day forward, the goal of all of us in the federal labor community – on both sides of the table – will be not our own self-interest, but those of an “effective and efficient government,” just like those members of Congress have committed to on Capitol Hill.

And now you readers will have to excuse me. For some reason I cannot quite explain, I feel the need for a big cup of tea.

EEOC: Consistent We Are Not
By Ernest Hadley

It is perhaps the most misquoted of quotes: “Consistency is the hobgoblin of little minds.”  Yes, that phrase is contained in a sentence that Ralph Waldo Emerson wrote but it isn’t the whole sentence and the extract stands the meaning of the entire sentence on its head. What Emerson actually wrote is “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”

When it comes to the law and those who decide our cases, consistency is precisely what we want.  There’s nothing foolish about it.  Consistency is what permits us as practitioners to evaluate cases with some degree of accuracy.  It’s what allows us to advise our clients and, in doing so, to foster settlement when appropriate.  It’s all about precedents and following them.

Yes, from time to time, precedents get overturned or tweaked and the law develops.  Sometimes, the precedents were just bad to begin with, other times they simply fail to account for all the factual permutations that can arise under a certain rule of law.  There’s nothing wrong with that and few would argue, except perhaps for a few Duck Dynasty folks, that Plessy v. Ferguson, 163 U.S. 537 (1896) and its separate but equal doctrine should still be the law of the land.

But inconsistency due to not knowing the law of the land, or at least the federal sector, is foolish.  And, so it is that I finally come to the point here with the recent case of Complainant v. Secretary of Health and Human Services, EEOC Appeal No. 0120123000 (November 14, 2013).  The complainant in that case—and, of course, what else could we call her no longer having even the complainant’s name to go by—alleged discrimination on the basis of sex and sexual orientation, though she declined to identify her sexual orientation.  The complainant alleged that one coworker had advised another that the complainant was a lesbian, lazy and the coworker should not offer to help the complainant.   (See how much easier that sentence would have been to write, not to mention understand, if these folks actually had names.)  The complainant also alleged that coworkers interfered with her work in other ways, including one coworker asked an IT person at the end of a seminar given by the complainant if he had come to bring her a vibrator.

And, here’s the part of the decision that has me all riled up:

At the outset, to the extent that Complainant may be appealing the dismissal of her claim of discrimination on the basis of sexual orientation, we find that such a claim is not within the EEOC' s purview. See Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (December 20, 2011). The Commission has held that Title VII does prohibit sex stereotyping discrimination. Id. (citations omitted). In the present case, however, we note that there is no indication in the record and Complainant has not claimed that she was subjected to any sex stereotyping discrimination.

(Emphasis added.)

Is that really the Commission’ view of the law in the federal sector?  Well, let’s take a look at what the EEOC says on its website on a page entitled “Facts about Discrimination in Federal Government Employment Based on Marital Status, Political Affiliation, Status as a Parent, Sexual Orientation, or Transgender (Gender Identity) Status”:

The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt. The Commission has also found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011), http://www.eeoc.gov/decisions/0520110649.txt.

Excuse me, but Macy, a case in which the Commission unequivocally held that transgender status is covered under Title VII is now almost two years old.  Sexual stereotyping is one way to pursue a claim of sex discrimination, Macy tells us, but there are other ways such as a straight—no pun intended—disparate treatment case. 

True, Macy didn’t say anything about sexual orientation because Macy didn’t allege discrimination based on sexual orientation.  But, let’s look at the two other cases cited in this decision.  In Veretto, the Commission found that an allegation that the complainant was physically and verbally harassed after announcing his marriage to another male in a local newspaper stated a claim within Title VII.  The Commission found that the essence of Veretto’s allegation was that he was being harassed because he failed to conform to a traditional male stereotype—i.e., that males should marry females.  Similarly, in Castello, the Commission found that the essence of her allegation was that she was being harassed because she failed to adhere to a traditional female stereotype—i.e., that females should be attracted to males.

Now, let’s just think this through for a minute.  What is the essence of being gay or lesbian?  I don’t exactly claim to be an expert on matters related to sex, but it seems to me the essence of being gay or lesbian is that one is attracted to members of the same sex.  That is, by definition, gays and lesbians fail to conform to the traditional sex stereotype—precisely the point of Veretto and Castello, which laid the groundwork for Macy.  

And so how is it that the EEOC can say in the Complainant case—oh, how I hate anonymous case names—that, in its view, sexual orientation is not covered by Title VII?  The answer is suggested by a slight variation on Emerson’s quote—“Foolish inconsistency is the hobgoblin of all minds.” 

I’m all for a little fooling around but when it comes to the law, give me consistency.

[Wiley note: Several years ago the US Office of Special Counsel (under the direction of a now-replaced former Special Counsel) tried to make this same distinction: that the law does not protect a status (e.g., being gay), but it does protect those who engage in behavior associated with that status (e.g., doing gay things like dating people of the same sex as in Castello). It was a silly construct then, and it is today with EEOC. So a word to the wise on the employee’s side of the table. Do not file a complaint when you are mistreated because you are gay; file a complaint when you are mistreated because you do gay things. Under EEOC’s theory, as I understand it, the only gay and lesbian people who are not protected are those who engage only in straight behavior.]

One of the Secrets of Our Business
By William Wiley

Most all of us do it. It’s a part of the skill set that we all need. Some of us think we’re good at it, but most of us aren’t as good at it as we should be. And although it’s a mightly important, valuable tool where the stakes for the government are in the hundreds of thousands of dollars, very few of us have ever been formally trained in how to do it.

What could it be?

Well, as revealed for the first time in detail in a recent report from the Office of Policy and Evaluation (OPE) of the Merit Systems Protection Board, that secret skill is … (drum roll, please):

Cutting a deal.

Yeah, we like to call it “settlement” so that it sounds as if we’re doing something all formal and neutral, but the reality is that when management agrees to give the employee something of value in exchange for the employee leaving voluntarily, or withdrawing his complaint, or whatever, we are using those same skills that the guys use on American Pickers, Pawn Stars, and in used car lots around the country every day. Something for something, quid pro quo, tit for tat – when a management representative agrees to give something to an employee to get that employee to leave voluntarily, she is cutting a deal just like deals have been cut since we as humans decided that trading was better than stealing.

If you have not attended our famous FELTG MSPB Law Week seminar (next offered March 3-7 in DC; operators are standing by), you may be surprised to learn that historically of all the individuals who are removed and file an appeal with MSPB each year, two-thirds withdraw their appeals in exchange for something of value from the agency (i.e., a deal was cut). The OPE report discloses that 95% of agency representatives reported cutting a deal in a Board appeal within the past three years. If you work in federal employment law for an agency, you have probably been trained in the law (e.g., how to craft a charge of misconduct, how to analyze the essential functions of a position) and you have probably been trained in the skill of hearing advocacy (e.g., how to develop a case theory, how to conduct a deposition). However, if you look at these numbers from OPE, the more valuable skill you need in this business is the skill of cutting the deal. You may not know the difference between a PIP and a Douglas factor analysis, have no idea how to object to an evidentiary submission in an arbitration, and still be a success in this business if you know how to settle cases.

Unfortunately, as OPE’s report points out, there is a huge pitfall for the unwary when it comes to cutting a deal to get an employee to go away voluntarily and thereby to avoid an appeal. That pitfall appears in nearly 90% of all settlements of removals, and goes by the name of a “clean record agreement” (CRA). The purpose of a CRA is to benefit the employee by keeping secret the fact that the agency had initiated an adverse action by:

a) Deleting related documents from the record, and

b) Restricting agency management from orally revealing that it had ever thought about utilizing an adverse action with the employee.

The value of this benefit to the employee is obvious. Most employees plan to seek other employment after they resolve the matter on appeal. Most prospective employers would not be interested in hiring an individual who previously had a serious problem as a federal employee. Individuals who bargain for CRAs believe that they will be able to hide their adverse action past from future possible-employers if there are no documents in the record and if the involved management officials keep their mouths shut.

As the report points out, there are significant problems with the agency complying with both of these prongs of a CRA if it is not worded extremely carefully:

Record Documents:  Sometimes management will agree in a CRA to rescind or cancel the SF-50 used to implement the removal. What some agency representatives who cut this deal don’t recognize is that language like this means that not just the SF-50 has to be changed but also all other documents that reference the removal have to be found and removed. See Conant v. OPM, 255 F.3d 1371 (Fed. Cir. 2001). In fact, it may even include documents that are not agency documents in the agency’s possession, but rather documents maintained by other agencies. See King v. Department of the Navy, 130 F.3d 1031 (Fed. Cir. 1997); Phillips v. Department of Homeland Security, 118 MSPR 515 (2012). Yeah, how would you like to walk over to the FBI and say, “Give me all your records”?

Oral Communications:  Sometimes in a CRA management will agree not to disclose the settlement terms to any prospective employer.  What some agency representatives do not appreciate is that this provision also restricts management from acting in a manner that suggests the employee does not have a clean record; e.g., “Wiley? Oh, yes, I used to ‘supervise’ him as much as he could be supervised. Beyond that I cannot answer your questions for reasons beyond my control.” Even if there is no explicit confidentiality clause, the Board might well find the agency in violation of the CRA if it gives out oral information inconsistent with the employee’s agreed-to clean documentary record. See Torres v. Department of Homeland Security, 110 MSPR 482 (2009).

So there’s the secret and there’s the problem. It would be helpful if the Board would just give us sample language that would make sense in a CRA. Unfortunately, as we’ve learned in the past, the Board is very good at telling us what the problems are and what NOT to do, but not what to do because that would be providing guidance and advice – something MSPB shies away from like the plague.

Well, the plague never bothered us here at FELTG. Once more, we step into the breach and risk our substantial legal reputations on what we would recommend you use in a CRA to avoid as many problems as possible while simultaneously being fair to both parties. But for that answer, you’ll have to go to the companion article, “Scrubby-Dubby: Clean Record Sample Language” somewhere else in this edition of our newsletter.

And Now the Case for Anonymous Complainants
By Ernest Hadley

Have you ever had one of those moments where you just wished you could melt into the woodwork and nobody would know you existed?  Of course you have.  We all have.  As a lead into this piece, let me share one of mine.

A long time ago, I did a fair amount of work representing nuclear whistleblowers and, in turn, did a lot of work with the Nuclear Regulatory Commission’s Office of Inspector General.  I had a good relationship with the IG and met with him on several occasions.  He left the agency and a new IG was named.  All I knew of the new IG was what I had read in the paper and that he had a Secret Service and security background.

So, I was asked at meeting with several NRC staffers, whistleblowers and other lawyers who represented whistleblowers what I thought of the new IG.

My response?  “Don’t know much about him other than I understand he’s a spook.”

At the next break, I was approached by one of the NRC staffers who asked, “You don’t know, do you?”

“Since I have no idea what you’re talking about, I guess the answer is that I don’t know,” I said.

“The new Inspector General is black.”

I really didn't know whether I should attempt to clarify my comment when the meeting resumed and risk making a bad situation worse or keep my mouth shut.    I opted for the latter hoping enough people in the room knew me well enough that the comment would not be perceived as racist.

So, here’s one of the upsides to the EEOC’s new policy of using the generic Complainant in all case decisions.  It allows people to do some really stupid things, file complaints over the stupid things they've done and not have to worry about melting into the woodwork.

Here’s an example.  In Complainant v. Secretary of Agriculture, EEOC Appeal No. 0121032519 (December 6, 2013), the complainant alleged disability discrimination and retaliation when several accommodation requests were denied and she was placed on leave restriction.

Her first complainant was that the agency failed to accommodate her when it constructed a wooden access ramp while management worked to have a permanent concrete ramp approved.  The wooden ramp provided access and there’s no indication that management was delaying in its efforts to have a permanent ramp built.  The Commission held, rightly, that the complainant was entitled to a reasonable accommodation and not the accommodation of choice and found no discrimination.

Next, she alleged that the agency failed to accommodate her by not permitting her use of a service dog at work.  The disability she alleged was something called myasthenia gravis.  Now, I admit that I had to look this one up and here’s what I found on the Myasthenia Gravis Foundation of America website:

Myasthenia gravis (pronounced My-as-theen-ee-a Grav-us) comes from the Greek and Latin words meaning "grave muscular weakness." The most common form of MG is a chronic autoimmune neuromuscular disorder that is characterized by fluctuating weakness of the voluntary muscle groups.

The agency asked for medical information specifically describing how the service dog would assist the complainant in performing her job.  Seems like a reasonable request given the lack of an obvious connection between the condition and the accommodation request.  The complainant refused to provide any information.  Again, the Commission found no discrimination because the complainant had not demonstrated any need for the requested accommodation.

Finally, the complainant alleged discrimination in her placement on a flexible work schedule instead of a “maxi-flex” schedule.  Actually, she had been on the maxi-flex schedule, but was continually late or absent without notifying management.  Management gave her a cell phone and air card to assist her in contacting management.  She lost the phone not once, but several times.  (Even my son has not managed to lose his cell phone several times though he did find that bouncing it down the stairs at school was not such a good idea.)  Again, the Commission found no discrimination because the failure to report was not related to her medical condition.

You know what?  If I was this person, I also would like to remain anonymous. 

Scrubby-Dubby: Clean Record Sample Language
By William Wiley

Elsewhere in this edition of our Famous FELTG newsletter, you have probably read a description of the findings of a recent report issued by MSPB’s Office of Policy and Evaluation, “Clean Record Settlement Agreements and the Law,” December 2013. The bottom line is that a poorly crafted clean record agreement (CRA) can cause an agency significant unexpected problems and result in perhaps several years of back pay if a removal action is eventually overturned on appeal.

Although the report does a good job of pointing out problematic language, it does not provide examples of how to settle a case without running into these problems. Knowing no fear and lacking good common sense, we here at FELTG go running into the darkness where no sane person would dare to tread. So without further ado, in priority order, here is how we recommend you settle removals so that you avoid the problems built into CRAs:

1.  If possible, do not agree to a CRA. We have been preaching this for at least 10 years in our FELTG seminars because of the dangers so well-articulated in OPE’s report. Explain to the employee two things:

a. You, as the agency representative, are willing to allow him to resign voluntarily in lieu of termination, pay his attorney fees, and maybe throw some cash or administrative leave in the pot to whatever degree you can stomach it. In other words, emphasize those parts of management’s proposal that provide substantial benefit to the employee, separate from any CRA.

b. Given the situation, a CRA really does the employee no good regarding the prospects of future employment. Most federal agencies and many private employers routinely ask job applicants, “Have you ever left a job under unfavorable circumstances?” It would be impossible to honestly answer that question “no” if the settlement agreement resulted in the individual leaving his job. Whether we like it or not, once an adverse or performance action is initiated, any subsequent “voluntarily” separation by the employee because of that action simply HAS to be considered as leaving a job under unfavorable circumstances. Bonus hint: Give the employee and his representative a copy of the OPE report to back up what you are telling them.

2. If the employee either has subpar counsel who doesn’t understand the above or thinks he can somehow fool a prospective employer regarding his unfavorable employment history with the agency, and INSISTS on a CRA, offer the following:

a. You will remove all reference to the removal action form the employee’s Official Personnel Folder (OPF). By specifically limiting the “clean record” to purging relevant documents from the OPF, you avoid the problem of all the other documents that might be around within or without the agency. If the employee wants to add more specific files to be purged, that should not be a problem. But by all means, avoid promising to provide a non-specific “clean record” or to “rescind” a removal.

Sample language: “The agency agrees to remove from the appellant’s OPF the SF-50 documenting the appellant’s removal and instead insert an SF-50 indicating that the employee resigned voluntarily for personal reasons.” And if you can get it, “Except as expressly provided for in this agreement, the appellant waives all rights to seek other records’ adjustments.”

b. As for oral confidentiality, never agree to lie. You can agree not to say anything, or to say only certain things, but never agree to make a false statement on behalf of the employee. In addition, avoid broad statements such as, “The agency agrees not to make any negative statements about the employee.” The better approach is a) to specifically identify who will speak about the employee to outsiders after the CRA is implemented, and b) to specifically characterize what that contact person will say.

Sample language: “The appellant agrees that he will refer all prospective employers seeking employment information only to General Counsel Ernest Hadley or his designee. Mr. Hadley agrees to provide only the employee’s prior position title, grade, salary, and to state that the employee’s separation from service was voluntary.” See Godwin v. Department of Defense, 228 F.3d 1332 (Fed. Cir. 2000). And if you can get it, “The parties acknowledge that the agency must respond fully and truthfully regarding those matters required by law or public policy to be disclosed.” See Fomby-Denson v. Department of the Army, 247 F.3d 1366 (Fed. Cir. 2001).

CRAs are replete with potential problems for agencies as well-described in the OPE report (MSPB is to be congratulated for producing such a valuable analysis). Not only is a poorly drafted CRA easy to breach, but the breach damages can be significant, perhaps resulting in several years of back pay. It is imperative that counsel on both sides of the table understand the potential pitfalls in this area so that any settlement truly is a meeting of the minds.

Wanted: Quality Investigations
By Ernest Hadley

I try to be a good boy and keep up with cases as they come out.  But it isn’t always possible—both being a good boy and keeping up with cases.  Sometimes I can be a good boy and not keep up with cases.  Other times, I can keep up with cases and not be such a good boy.  Then, of course, sometimes I actually do manage to do both.  As a former baseball player, I always figure that one out of three is pretty good.  After all, how many players do you know with a .333 average?

This is also the time of year when thoughts, if not actual effort, turns toward the next edition of A Guide to Federal Sector Equal Employment Law and Practice.  That means that I pick up some of the cases I missed along the way.

Here’s one that I either missed, or it simply didn't attract my attention when I first saw it.  (I know it’s hard to believe, but sometimes my eyes just gloss over when reading EEO decisions.  Oh, right.  Like it’s never happened to you reading one of these articles?)  The case is King v. Commissioner, International Boundary & Water Commission, EEOC Appeal No. 0120114319 (2013). 

So, first things first.  I didn’t know there was such a thing as the International Boundary & Water Commission.  But a quick internet search assures me there is and its mission is “to provide binational solutions to issues that arise during the application of United States - Mexico treaties regarding boundary demarcation, national ownership of waters, sanitation, water quality, and flood control in the border region.”  In FY 2012, it employed 261.7 FTE’s.

Now, I don’t want to pick on a small agency.  It seems like it may actually be a good place to work.  It has had no EEO complaints in the last two fiscal years according to its latest No Fear Act report.  Its spike in complaints over the last six years came in FY 2010 when nine complaints were filed by a total of two complainants.

This isn’t about a particular agency; it’s about the outcome of a case that makes no sense to me whatsoever.  It's also about how can we possibly expect agencies will conduct quality EEO investigations given the outcome in this case.

The complainant was a WG-03 laborer on a two-year term appointment.  He alleged that he was subject to retaliation when the agency terminated his employment.  The memorandum terminating him gave as reasons: failure to follow leave procedures, failure to provide requested medical documentation, falsification of time cards, inattention to duty, recording conversations in violation of agency policy, and discourtesy towards a coworker.

The EEOC vacated the FAD and remanded the case back to the agency for supplemental investigation because on the first two charges there was evidence that the complainant made a request for accommodation for a work-related injury; namely, he wanted permission to go home during the day and change the dressing on his bandage.  However, the record did not contain statements from either the complainant’s first-line supervisor or the union president, both of whom were present at the meeting where he requested accommodation.  The file also did not contain the leave procedures that the complainant allegedly failed to follow.

The complainant was charged with falsifying his timecards on three specific dates but the investigative file contained no evidence relating to those dates.  The record also contained no testimonial evidence about the alleged falsifications.

Once again, with regard to the inattention to duty charge, the file contained no evidence.  On the recording charge, the record contained no evidence that the agency had a policy on recordings and no statement from the official who allegedly told the complainant he could record the conversation.

On the final allegation, one supervisor said that the complainant told a coworker to “f*** off,” but the complainant said he told the coworker to “buzz off.”  Even though there were at least three other employees present at the time, the record contained no statements from those employees.

The Commission also noted that there was no comparative evidence in the record even though such evidence is required by Management Directive 110.

In his appeal, the complainant alleged that he gave the EEO investigator a list of witnesses to interview, but the investigator interviewed only management witnesses.  The Commission made no particular finding on that allegation, but the record appears to bear out that allegation.

Presumably, the EEOC wants to encourage agencies to conduct “impartial and appropriate” investigations as required by 29 CFR 1614.108(b).  Vacating the FAD and remanding the case doesn't do that.  I mean, think this through folks.  What detriment is suffered by the agency when its investigation is facially deficient?  It has to do it a second time and get it right.   Gee, that’s a real incentive to get it right the first time around.  But there are two alternatives that clearly would.

First, the Commission could have simply used the McDonnell Douglas v. Green analysis as it does in all cases of alleged retaliation that rely on circumstantial evidence.  McDonnell Douglas v. Green, 411 U.S. 792 (1973).  You know, the complainant establishes a prima facie case by showing that he engaged in protected activity, management knew of that activity and adverse treatment followed.  Now, under Texas Dep’t. of Community Affairs v. Burdine, 450 U.S. 248 (1981), the burden shifts to the agency to articulate legitimate, nonretaliatory reasons for its actions through clear and specific admissible evidence, something that the agency didn’t do in this case.  What happens when the agency doesn’t do that?  Well, the prima facie case raises a rebuttable inference of discrimination and that inference is sufficient to support a finding of retaliation in the absence of legitimate nonretaliatory reasons.  St. Mary’s Honor Center v. Hicks, 509 U.S. 502  (1993) (“To establish a ‘presumption’ is to say that a finding of the predicate fact (here, the prima facie case) produces ‘a required conclusion in the absence of explanation’ (here, the finding of unlawful discrimination)).  In other words, the complainant prevails on the merits of the case.  In this case, the agency failed to introduce any specific and admissible evidence that its proffered reasons were legitimate—i.e., it did not rebut the prima facie case presumption.  Based on the record, the case could have simply been decided in the complainant’s favor.

Alternatively, the Commission could have invoked 29 CFR 1614.108(c) and imposed a sanction on the agency for failing to conduct an impartial and appropriate investigation.  An adverse inference—say, that if the agency had produced the comparative evidence and interviewed the complainant’s witnesses it would have demonstrated that similarly situated employees who committed similar acts of misconduct and did not engage in protected activity were disciplined less severely.  There’s not enough evidence in the record to overcome that inference and the result is the same—the complainant prevails.

Such an approach would give agencies pause before putting together shoddy investigations that are facially deficient and basing FAD’s on those investigations.  And the solution for agencies is simple.  Conduct an adequate investigation that, in most cases, would exonerate agencies on the merits of the case.

This is not about the good folks over at the International Boundary & Water Commission.  It’s about the integrity of a process where the agency gets to investigate itself and decisions like this do nothing to enhance that integrity.

[Wiley note: Our recent open-enrollment seminar on conducting impartial workplace investigations (December, San Francisco) (lead by attorney Michelle McGrath) received the highest participant ratings we have ever received for a newly restructured seminar. If this is an area of interest to you – and for goodness sakes it should be – you may want to consider enrolling for the next offering of that program, October 6-10 in DC.]

The Board Triples-Down on Miller-Time
By William Wiley

Sometimes you see it on TV as a joke; sometimes you see it in real life. An American visiting a foreign land who doesn’t speak the local language will repeat himself in English over and over, louder and louder, hoping that somehow increased volume and repetition will transcend the lack of a common vocabulary. In a removal case that’s no joking matter, the good members of MSPB are taking a similar approach in issuing a third decision trying to explain a concept that is fundamentally foreign to any of us who has worked in federal employment law for more than a couple of months. Apparently, the Board believes that if it says it loud enough, its rationale for upending a fundamental and important management right will become clear and thereby accepted. Well, just like our loud-mouthed tourist, saying it over and over does not necessarily increase either understanding or acceptance. Miller v. Department of the Interior and Office of Personnel Management, 2013 MSPB 94 (December 6, 2013) (Miller-3).

To catch you up on this sad trail of woeful decisions, here’s what happened:

1.  The Park Service created a new position in which it wanted a terrific employee. Mary Miller was a terrific employee, so it reassigned her to the position. Unfortunately for everyone, Miller refused the reassignment because taking the job would require a geographic move which she was unwilling to endure. The Park Service then removed Miller for refusing the reassignment.

2.  On appeal of the removal, the Board reversed the action. Its reasoning was simple. Removals can be taken only for such cause as promotes an efficient service. Since a firing and then a recruiting for two vacancies would cost more than retaining Miller and recruiting for one vacancy, the agency’s action was not efficient, and thereby improper. Miller v. Department of the Interior, 2013 MSPB 27 (Miller-1).

3.  In response to a highly critical article in this newsletter (OK, probably not, but we like to pretend that we’re important), the Board soon thereafter issued Miller-2 (Miller v. Department of the Interior, 2013 MSPB 35).  In that opinion, the Board stated that its Miller-1 analysis was supported by precedential decisions going back 30 years, and that the Miller-1 rule is a good one: federal employees can be reassigned only if they want to be.

These two decisions were so repugnant to the running of a federal agency that OPM stepped in and asked that the Board reconsider the path it had chosen, allowing employees to stay in their jobs indefinitely even if management had decent reasons for reassigning them. Thus, Miller-3 was recently born, an opinion that is both louder and redundant at the same time.

Here is the highlight:

-  The Board clarified that even though it faulted the Park Service for directing a reassignment that was not necessary, it didn’t really mean to say that. When removing someone for refusing a reassignment, the agency does not need to prove that the reassignment was “necessary,” only that its reasons are “rational,” “bona fide,” and support “the efficiency of the service.”  (See, don’t you feel better now with this improved clarity?)

Here is the lowlight:

-  The Board continues to hold fast to the precept that even a good reason for a reassignment (e.g., wanting to place a terrific employee into an important job) will not satisfy this new rational/bona fide/efficiency standard if the Board members disagree with it. Unfortunately, what this means is that an agency will not know in advance whether a removal will be sustained because it cannot know in advance what the members will consider to be a reason that satisfies their new standard. Oh, there’s nothing like a little legal uncertainty to empower agency management.

In reasoning for the reconsideration of Millers-1 and 2, our friends at OPM eloquently argued that “There is no more fundamental right than the right for an agency to deploy its employees in what it deems to be an efficient and effective manner.” In response, the Board noted that yes indeed; the right to reassign is a fundamental right of agency management, (citing with approval 5 CFR 335.102). However, an agency cannot enforce that right by removing an insubordinate employee unless it can correctly guess in advance what the Board will consider to be a bona fide, efficient, and rational reason (other than knowing that according to the Miller Trilogy, wanting a terrific employee in an important position is not good enough).

My first appointment to the front office of the Board was in 1988. From then until 2001, I had the honor of working under three Chairmen. And without divulging any state secrets, I can say that each Chairman on one or more occasions involuntarily reassigned a senior manager at the Board not out of “need,” but rather based on a decision that the employee would be of greater benefit to the government in a different position. 

With all due respect, I would ask each of the Board members to look deep into their respective civil service souls and personal history. Each one of you either currently supervises or has in the past supervised one or more employees. And without my having any personal knowledge, I would guess that each of you has run into a situation in which you had an employee who worked for you who you believed should be in a different position – not for bad reasons, but for what you consider to be good reasons. If you told that employee that she had to report to a new position, and she refused, what would you do? Would you feel comfortable keeping an insubordinate employee in a position just because she didn’t want to move to a new job? Would you feel more comfortable removing that employee, then afterwards explaining to someone who doesn’t know anything about your work why you decided the reassignment was rational and bona fide?

If you cannot assign work as you see fit, you cannot manage a government.  There will be many dark days ahead for our civil service if this line of Miller-Time reasoning withstands Federal Circuit review.

The Sky is Always Blue Above the Clouds
By Deborah Hopkins

I’m writing this article while vacationing with my mom in Playa del Carmen, Mexico. It should be sunny and 81 degrees, but today the clouds refused to dissipate, and it’s been raining for 24 hours straight, and so we’re having a drink and making the best of our damp circumstances. Apparently, over 100 million Americans are experiencing a severe cold snap while we sit here in flip flops and tank tops, so I really shouldn’t complain that today’s high only reached 78 degrees and that I got rained on while I went for a run on the beach this morning.

Mom and I were sitting under a palapa this morning, hiding from the rain and praying the clouds away, and every few minutes she would utter a rendition of something like, “I think the sun is trying to come out,” or “The sky is blue over there, right?” to no avail. After a few iterations of this my response was, “The sky is always blue above the clouds.” And indeed, it is. So what can be done about a rainy day at the beach? Well, we could have moped about it, or we could have tried to make the best of it, and so we decided on the latter. It may not be ideal but we’re still managing to have a good time.

I met a group of very nice Canadians on this trip, including a couple of people who are employed by the Canadian government, and when they found out what I do for a living they had dozens of questions about current employment climate within the federal government. It’s no secret that things are tough right now for federal workers, and have been for quite some time. Shutdown, sequester, changes in benefits, limited availability of certain positions – all these things can make it feel like a dreary, rainy day in the workplace. So, do you mope or do you make the best of it? As 2014 dawns, and people make resolution they’ll never keep, perhaps it’s a good time to try to see the sun and blue sky above the clouds.

Suggestion #1. Think of two or three things you’d like to change about the job you’re currently working in, and see if you can make those changes happen. Maybe you can apply for telework, move your desk to a new location within the office, or take on a new job responsibility. It’s probably worth asking about.

Suggestion #2. Instead of focusing on the things you don’t like, the problems you’re encountering, or the project that seems like it just won’t end, write down five or six things you like or appreciate about the job you currently have. Yes, write these things down and keep the list somewhere you have easy access, in case you need a reminder. (Suggestions: a co-worker you’re friendly with, the fact that you have an office with a view, the ability to telework)

Suggestion #3. Don’t burn your bridges, even if you’re getting ready to make a move. Some workplace situations are so intolerable that there’s really no choice but to look for new opportunities elsewhere. If that’s the case, remain professional and keep your network contacts intact. You never know who you’ll see again, and our world of federal sector employment law is quite small, so stay above the fray regardless of the situation you’ve been dealing with.

Today’s article is short and sweet, but after all, I am on vacation so I hope I get a pass on it. However, I’d still like to leave you with a New Year gift. Check out this website to see 24 people who made the best of a bad situation: http://www.buzzfeed.com/awesomer/people-who-made-the-best-of-a-bad-situation. (The website is Buzzfeed, so if your agency blocks this site forward the FELTG newsletter to your personal email address and check it out at home – it’s worth your time for the chuckle you’ll get.)


 

December 18, 2013 Newsletter

Well, this is it, folks.  The last FELTG Newsletter for 2013.  What with furloughs, shutdowns and dodging a debt ceiling, it’s not been the best of years on the federal front.  With the House passing a budget deal, but not an actual budget, last week, we’ve moved a step closer to 2014 being a better year, or at least one with some stability.

So, this is a good time for all of us here at FELTG to express our deep appreciation for what you do out there everyday despite, what at times, seem like overwhelming odds.  Yes, we sometimes criticize and even poke fun at some of the things that happen in our little community, but we do so because we care and as a way of prompting thought about some of the issues we confront.

We’ve got a lot of good things planned for next year to help you confront some of those issues.  We’ll be resting up for a few weeks, but beginning January 9 we’ll be back with FELTG’s supervisor training webinar series Holding Employees Accountable for Performance and Conduct. In just a few sessions, we’ll cover topics to enable your agency supervisors to comply with OPM’s 5 CFR 412.202(b) mandatory training requirements, plus as a bonus we’ll cover the EEO topics you can’t afford to miss.

Open enrollments also kick off with Absence & Medical Issues Week, January 13-17, in Washington, DC, followed by the brand new and highly-anticipated Advanced Legal Writing Week, February 3-7, also in Washington, DC. Plus, we have a whole list of topical webinars on the docket. Check out all those details, and more, on our website.

From all of us, we wish you the very best for this holiday season and a joyful new year.

Read and enjoy.

EH

A Symbol We Can All Get Behind
By Ernest Hadley

We are dinosaurs.  Even though we live in an area where we don’t get home mail delivery, we do get two newspapers delivered to our door everyday.  Well, not exactly to our door, but to the end of our road -- a pleasant stroll of several hundred yards in the summer, somewhat less pleasant this time of year.  We also get the local weekly.  How else would we know who’s been arrested lately?

Anyway, newspapers are not exactly the point of this story, except for sometimes I get my ideas for newsletter articles from newspapers.  And so it was that I came across an Associated Press article about the Accessible Icon Project -- isn’t that really a better name than Handicapped Symbol? -- and the effort to replace the stationary humanoid figure in a wheelchair with one that suggests forward movement.

The new icon goes quite nicely with what we teach at FELTG about the state of affairs under the Americans with Disabilities Act Amendments Act.  The emphasis under the ADAAA is no longer on what individuals with disabilities can’t do, but what they can do despite having a disability.

The goal of the Accessible Icon Project is simple:

The Accessible Icon Project provides supplies and services to transform the old International Symbol of Access into an active, engaged image. We think visual representation matters. People with disabilities have a long history of being spoken for, of being rendered passive in decisions about their lives. The old icon, while a milestone in ADA history, displays that passivity: its arms and legs are drawn like mechanical parts, its posture is unnaturally erect, and its entire look is one that make the chair, not the person, important and visible. As people with disabilities of all kinds -- not just chair users -- create greater rights and opportunities for social, political, and cultural participation, we think cities should evolve their images of accessibility too. 

So what does the new symbol look like?

 
Want to know more about the Project?  Go to http://www.fastcodesign.com/1672754/how-a-guerrilla-art-project-gave-birth-to-nycs-new-wheelchair-symbol.

Now, if we could only get on with the business of eliminating labels like “Handicapped Parking” and “Handicapped Ramps.” 

The Limits of Supervision
By William Wiley

Most of us have probably been on a football field at one time or another. Player, band member, cheerleader, or just looking to grab a quick smoke at recess. Football fields are a ubiquitous part of our lives.

Picture yourself standing just beyond the end zone, probably right under the goal post. Now look beyond the back edge of the other end zone and picture your 13-year-old son sitting behind the wheel of something really big and dangerous when it moves, maybe a bulldozer or a tank. And finally, picture a class of kindergarteners gleefully playing around behind that other end zone near your son.

Pop Quiz: Would you say you would be exercising bad judgment if you were to instruct your son from your current location as to how to maneuver his vehicle through the crowd of kiddos? Would you change your answer if I told you that you could contact your son using a two-way radio? In other words, would you think it good judgment to supervise someone long distance in how to move a really, really big piece of equipment in a situation in which a mistake could kill someone?

Well, if you answered that you think you can provide adequate supervision in a situation like this, then you qualify to be a member of the Merit Systems Protection Board, because that's exactly what the Board majority said recently in Hill v. Army, 2013 MSPB 88.

Of course, the facts of that case didn't involve your teenage son and an earthmover. Instead they involved a temporary clerical employee being supervised in how to close a lock in a canal from a distance of about 400 feet. That's a bit farther away than in our hypothetical football field analogy, and big boats carrying adults is different from our made-up kindergarten scenario, but you get the drift. (Get it? Drift. Boat. Sometimes the humor just pours out of my fingertips.)

Mr. Hill is an experienced lockmaster. That's a really big deal because that means he's responsible not only for huge expensive things like ships and boats, but also for the men and women on those vessels, plus their cargo, as they transgress through a system of locks that control the change in water level from one body of water to another. If you've never seen a lock in action, it's actually worth a visit some weekend if you get a chance. Fascinating.

The Army fired Hill based on two charges: 1) Exercising poor judgment and 2) Lying about the lock incident. The poor judgment charge had two specifications: the lock incident above, and a separate questionable use of the lock to move two boats at once. Although Hill had a long and successful career, he had recently been suspended for a day for failing to follow instructions.

The Board upheld the falsification charge. There was a nice little security video that showed he was lying when he said he didn't allow the clerk to operate the lock. So we all agree that we have a supervisor, with a prior suspension, lying. There was a time that this act alone would have warranted removal. How can the agency trust this guy in the future when he lied to protect his own backside? How can you run an organization with a senior manager responsible for life and death decisions that you can't trust to be truthful?

But none of that mattered to the Board majority. Although they upheld the falsification charge, they did not uphold either specification of the bad judgment charge. And as attendees at our MSPB Law Week seminar learn, once the Board knocks out a charge, it feels free to make its own decision as to the penalty (if all charges are sustained, the Board is supposed to defer to the agency's penalty selection, even if some of the specifications fail). Upon reaching the penalty, the majority held that the maximum reasonable penalty in this situation is a 60-day suspension. So now the Army has a falsifying lockmaster back at work who believes it's OK to supervise untrained clerical employees in the operation of a lock from over a football field away. What a way to float a boat.

In dissent and in support of the removal, Member Robbins said, "It is difficult for me to envision a clearer example of poor judgment by a professional and manager." Oh, if only some of the other Republicans in Washington made as much sense as does he.

The Federal Sector Glass Ceiling
By Ernest Hadley

So, GM broke the glass ceiling last week by naming Mary Barra as CEO.  Based on a recent EEOC Women’s Work Group Report, maybe its time for the federal government to do the same.

Commissioned by Office of Federal Operations Director Carlton Hadden in January 2010, the group mission was to identify barriers for women that remain in the federal sector.  From a summary of the report, the landscape still looks a bit glum:

As just a small example, in 2011, women comprised 43.81% of the federal workforce.  Despite this, preliminary data for 2011 shows that women only comprised 37.77% of GS-14 and GS-15 positions, and 30.03% of Senior Executive Service positions.  Further, the average General S Schedule and Related (GSR) grade for women was 9.6, more than one grade below the average grade level for men of 10.7.

The report identifies six barriers that remain for women in the federal workplace:

OBSTACLE 1: Inflexible workplace policies create challenges for women in the federal workforce with caregiver obligations.

OBSTACLE 2:  Higher level and management positions remain harder to obtain for women.

OBSTACLE 3: Women are underrepresented in science, technology, engineering, and mathematics fields in the federal workforce.

OBSTACLE 4: Women and men do not earn the same average salary in the federal government.

OBSTACLE 5:  Unconscious gender biases and stereotypical perceptions about women still play a significant role in employment decisions in the federal sector.

OBSTACLE 6: There is a perception that Agencies lack commitment to achieving equal opportunities for women in the federal workplace.

Each of the obstacles is accompanied by a number of recommendations for overcoming them, as well as identifying areas for further research such as why women are underrepresented in higher-level management positions.

The full report is available at http://www.eeoc.gov/federal/reports/women_workgroup_report.cfm.

How Discipline is Supposed to Work
By William Wiley

In 1977, I attended an employee relations training class presented by the old Civil Service Commission. Back in the day, it was mandatory for newbies to the field like me to attend these CSC fundamentals classes. Otherwise, we were not allowed to advise line managers on our own without supervision.

I remember one of the gray haired instructors explaining "progressive discipline" to us. He said something like this:

We never want to discipline someone just for the sake of punishment. What we want them to do is to correct their behavior so that they are a good civil servant. Generally, the first time they do something wrong, we warn them not to do it again. That's considered to be the first step in progressive discipline, and we call that warning a Reprimand.

Later, if they engage in further misconduct, they are demonstrating that reprimands don't work to get them to stop breaking the rules, so we move up to a more severe level of discipline, and we take away part of their salary by keeping them from coming to work for a period of time. That's the second step in progressive discipline and we call that a Suspension.

And finally, if they engage in yet further misconduct, they are showing us that reprimands and suspensions don't work on them to correct their behavior. An employee who does not respond to discipline cannot be tolerated in the federal workforce, so we remove them.
 
Oh, the halcyon days of youth. How straightforward. How logical. We are doing the employee a favor when we reprimand or suspend because otherwise we would be removing him for violating a rule. And if he just doesn't get it -- and some people don't -- we then remove him from the civil service and replace him with someone who does.

When the Board took over the discipline oversight responsibility from CSC in 1979, it carried this principle with it. Although there's no single case that says it as succinctly as did my instructor at the CSC training academy, you will be hard pressed to find any MSPB holdings that varied very far from this reprimand/suspension/removal three strike concept.

Until recently. Beginning with Suggs v. Department of Veterans Affairs, 2010 MSPB 99 and as recently as Hill v. Army, 2013 MSPB 88, two members of the Board are tending to discount a prior suspension as a step in progressive discipline UNLESS the suspension was for the same misconduct as the later offense that is the basis of the subsequent removal. For example, in Hill, the previous suspension was for Failing to Follow Instructions. The sustained charge supporting the later removal was Falsification (the details in Hill are discussed in a companion article in this newsletter). When discounting the weight to be given to the previous suspension and mitigating the removal, the Board majority essentially ignored the previous suspension and noted that there had been no prior discipline for the specific Falsification charge that was the basis for the removal.

This is a subtle but hugely significant change from the way I learned progressive discipline is supposed to work. The old CSC approach gave employees a chance to obey the rules through the application of progressive discipline. This new Board-majority approach implies that progressive discipline is intended to correct behavior relative to each individual workplace rule that the employee might violate. In a vacuum and removed from the reality of frontline management, this new approach has a ring of rationality. By applying the concept of progressive discipline on a rule-by-rule basis, we are affording the employee a chance to correct his behavior relative to each rule. However, if you really think about it, this approach creates a situation in which an employee could violate each rule in the agency's table of penalties once and get only a reprimand for each violation. As a typical table of penalties contains 50 or so charges (specific rule violations), that could be 50 or so reprimands before we can move up progressively to a suspension. And that's just foolish.

So here's where we seem to be with the current majority of this Board:

Progressive Discipline:  You cannot count on a prior suspension to justify a subsequent removal based on the classic approach to progressive discipline. If the prior suspension is for the identical misconduct as the subsequent misconduct, maybe. But we can't even say that for sure. All we can say is that the current Board majority does not give much weight to a prior disciplinary action if it is not for the same misconduct as supports the removal. What we don't know is if the current Board majority actually gives much weight to a prior suspension even if it IS in the same category of misconduct. For 35 years, I have taught that progressive discipline is the "silver bullet" in defending a removal action. I'm afraid I can't say that any more.

Long Suspensions:  If you read Hill, above, or Tarr v. Department of Transportation, DC-0752-10-0910-I-1, APR 19, 2012 (NP), you will see that the Board majority appears to be enamored with the idea that a 60-day suspension is a good alternative to a removal if the removal is an excessive penalty. Well, I would ask the honorable Board members, where in the world did you come up with this? There is zero (0, zilch, nada) empirical evidence to even suggest that a 60-day suspension is more likely to correct bad behavior than would a 14-day suspension. If you don't believe me, go ask the Board's Office of Policy & Evaluation to do a little research in the area.

Of course, if your objective is other than to correct behavior, then maybe 60 days makes sense. However, if you do have an objective other than corrective, please tell us poor slobs out here on the frontline what it is so that we might try to do whatever it is you expect us to be doing. Because a 60-day mitigation does not make sense to us normal people.

I don't mind changing direction as to what we are supposed to do as much as I mind not knowing what we are supposed to do that is different.

Don’t Post That Picture of Me and Santa on Facebook!!!
By Deborah Hopkins

It snowed in D.C. last week. I mean, real snow. The grass even had some white stuff stick to it for a few hours. While many people behaved as if it was the end of the world and refused to come out of their houses, I took the opportunity to drag a friend along for a run on the Mall, in the snow. And as we ran along the Reflecting Pool toward the Lincoln Memorial, pool blinking big, fat snowflakes from our eyelashes, it hit me that the holidays are really here!

My social calendar has been full of Hanukkah/Thanksgivukkah parties, and there are Christmas and New Year’s parties still to come. Last year I put together an etiquette guide for your agency holiday parties, so this year I thought I'd supplement that with some additional considerations for the holiday season office party attendee.

Location, Location, Location:  Given the constraints of the federal budget and the recent excessive spending behaviors exhibited by agencies that will remain nameless, if your agency is having a holiday party, it’s probably been scaled back from an all-out extravaganza at a hotel ballroom or five-star restaurant.

If, however, the locale is away from the office building, it’s important to consider the location. A restaurant or bar may be a fine choice, but use common sense and keep the surroundings in mind. Taking your EEO group to Hooter’s for Christmas lunch may come back to haunt you.

Some Rules About Giving Gifts:  Last year we covered the topic of gift guidelines for federal employees. (If you’re not familiar, check out http://www.oge.gov/DisplayTemplates/SearchResults.aspx?query=gifts).

In addition, if there are gift exchanges or Secret Santas or the like, keep the following in mind:

1) Don’t give gag gifts that could be interpreted as mean-spirited. For example, don’t give an alarm clock to someone who is perpetually tardy.

2) Don't give gifts of a personal nature. For example, stay away from gifts like reindeer boxers or snowman nighties. Undergarments and sleepwear should be avoided at all costs.

3) If you’re not giving gifts to everyone, keep your gift-giving private and away from the party. After all, nobody likes to feel left out.

It’s a Party, But It’s Still Work:  Does this mean that the conversation has to be about work? Certainly not! Holiday parties provide an excellent opportunity to meet new people, to make small talk, and to take a break from the crunch of the workday. That said, don't forget that it’s still a work party – which means it’s important to steer clear of no-no conversation topics (religion, politics, sex, money) and remember that what you do at your office party reflects on your image as a government employee. Wear a Santa hat or reindeer antlers, sure, and have fun with it. But be sure to maintain your professionalism throughout.

Photo Opportunities:  As the world-famous Bill Wiley always says, never allow yourself to be photographed coming out of a casino or holding an alcoholic beverage. Since your holiday party won’t be held in a casino (or at least, we hope it won’t) the second part is something to be aware of. Photos taken at a holiday party can be a fun way to remember the event. But be respectful by asking permission before you take a person’s photo, and also before posting on a social media site. It’s just the proper thing to do.

Some Final Considerations:  Moderate your alcohol and food consumption. Enjoy telling some jokes and talking shop. Mingle with your co-workers, meet new people, say hello to the supervisor (but don’t take this as an opportunity to pitch a new idea), and be sure to thank the hosts for putting the party together. And have fun!

From FELTG to you, we wish you a continued joyous holiday season. Eat, drink, and be merry. Enjoy time with family and friends. And cheers to a productive and happy 2014!