We come to the end of another year and the last newsletter of 2011.  That’s right.  There will be no second newsletter this month.  (Okay.  We heard those cheers and that wasn’t nice.)  Bill and I are in the process of winding up the year for FELTG with our Legal Writing in Federal Sector Employment Law Cases workshop this week and then it’s home for the holidays.

We’re really looking forward to 2012 and we hope you are, too.  We’ll be back on the road—first in D.C., beginning on January 9th with Absence & Medical Issues Week and then it’s off to San Francisco, beginning January 30th, for Civil Service Week.  In case you haven’t guessed, at FELTG, we love training.  In fact, we love it so much that we’ve already planned our entire course curriculum for 2012 and it’s all on our website at www.feltg.com.  There are still a few courses that we’re considering adding for the year so, if you’re interested, key an eye on the website for updates.

For all of us here at FELTG, have a safe and happy holiday season.

Bill and Ernie

Gosh-Darned Regulations
By William Wiley

As practitioners in this business, it's our job to know the laws and regulations that control the federal workplace. And, as a general rule, we act and advise in a manner consistent with those controls. But what do you do when you run into a regulation that does more harm than good for both the employee and the government?

Case in point. One or two newsletters ago (I forget because I'm old), I gave advice relative to what to do if a WIGI comes due during a PIP. We know if you let the WIGI go into effect you have destroyed the PIP because the WIGI certifies fully satisfactory performance, and you can PIP someone only if he or she is performing unacceptably. The advice from this column, and a procedure I've been following for over 30 years, is to defer the decision on the WIGI until the PIP is completed. If the employee performs at the fully acceptable level during the PIP, he gets the WIGI retroactively. If he fails the PIP, he's going to be concerned with a lot more than the denial of a WIGI.

Well, a couple of our more astute readers very quickly and very politely offered that I am becoming noticeably senile because my advice violates OPM’s WIGI regulations. Specifically, 5 CFR 531.409(c) says that a WIGI can be delayed in only two situations: 1) when the employee has not been in the position for the minimum period of time, or 2) when the employee has been previously demoted for unacceptable performance. 5 CFR 531.404(a) states that if an employee’s performance at the time a WIGI is due is lower than the most recent rating of record, the employee should be given a new rating of record.

The result of these two regulations taken together would be that during a PIP if a WIGI comes due, the supervisor would have to issue a rating of record (grievable in itself) and also deny the WIGI (separately appealable through MSPB, all the way to the US Supreme Court for the more adventurous appellant). Each of these actions would be bad because they would distract both the employee and the supervisor from the hugely important requirements of the PIP. So what should we do about these uncompromising and harmful regulations?

Well, here's my answer: Ignore them. My recommendation as to how to handle a WIGI due mid-PIP is to DEFER the decision until the PIP is completed, not to DELAY the determination. Delaying the determination is harmful to the employee in that it would permanently deprive him or her of a monetary increase in pay for whatever the period of time the delay might be. Deferring the determination, on the other hand, delays the award of a WIGI, yet fully compensates the successful employee by its retroactive nature. I can read the regulations so that they do not specifically prohibit what I want to do (defer), and my approach does a service to both the employee and the government. I have respect for those who read the regulations more tightly than do I, and we each have to make our own decisions. However, for me the right answer is always what is best for America and the employees who work for it, and WIGI deferral is a lot better for us all than WIGI denial mid-PIP.

The Right To Counsel During Harassment Investigations
By Ernest Hadley

Last week, I happened to run into Josh Bowers, an old classmate from the late, great Antioch School of Law who, like me, somehow managed to fall into this arcane area of federal sector employment and, also like me, has never quite managed to find his way back out again.  He told me about a problem he has encountered a number of times in his cases and provided me with some research on the subject.  (Therein, I disclose one of my principal research techniques—people simply tell me about things.  This not only cuts down on my own research time, it makes me look much smarter than I really am.)  Anyway, back to Josh’s situation, which I thought would be helpful to discuss here.

The Problem:  The employee makes an allegation of harassment and nothing happens.  Now, the employee has filed an EEO complaint and the agency decides it’s time to conduct an investigation—not an EEO investigation, but an investigation into the employee’s allegations with potential disciplinary consequences.  But, HR doesn’t want to permit the employee who filed the allegation, or other employees who are witnesses, with the right to have counsel present, a union representative perhaps, but not counsel.  So, what is the right to counsel here?

Well, here’s what Josh came up with in the way of what the EEOC has to say about the issue:

In Wilson v. U.S. Postal Service, EEOC Appeal No. 01974181 (1998) the Commission reinstated a charge dismissed by the agency that alleged an employee suffered discrimination when her attorney was not allowed to attend a pre-discipline meeting that was related to an EEO complaint. The Commission held that denying an employee’s right to an attorney during the pre-discipline interview, related to an EEO charge, alleged a harm with respect to a term, condition, or privilege of employment with the agency. Id.
 
In Kustad v. United States Postal Service, EEOC Appeal No. 01991069 (2000) the Commission overturned an agency dismissal of an EEO charge based on the complainant being denied the union representative of her choice during discipline interview.  The Commission held that denial of representation during a discipline investigation related to a Title VII charge was a Title VII violation of the right to representation. Id.  In Kustad, the Commission did not reach the issue of whether denial of representation by an attorney during a discipline interview would support an EEO charge, but did state that “If complainant was not allowed to bring outside representation into the investigation while others were permitted non-union representation, then complainant was aggrieved.” Id. See also Zhang v. United States Postal Service, EEOC Appeal No. 01982202 (1999); Danforth v. Department of the Army, EEOC Appeal Nos. 01983501, 01983457 (1999) (finding complainant aggrieved by denial of union representation when complainant issued a letter of warning); Owen v. United States Postal Service, EEOC Appeal No. 01964336 (1997) (complainant stated a claim where union representative of choice denied, and complainant refused to be represented by a union member chosen by the agency who was not an authorized shop steward).

None of those cases address the issue directly and it doesn’t appear that any OFO decision has.  Wilson certainly suggests there’s a right to outside counsel and the other cases seem to focus on whether the complainant was denied union representation that others were permitted.  So, where does that leave us?

Well, once an individual has filed an EEO complaint, he or she is entitled the representative of choice.  29 CFR 1614.605(a).  Ah, but you say, this isn’t part of the EEO process, it’s the administrative investigation into the allegations to determine if discipline is warranted.  Yes, but I’m not so sure that I’d want to be the one trying to make that argument to the EEOC.  Once the EEO complaint has been filed, it’s pretty hard to separate the two and, even assuming the two can be separated, I think it’s a fairly easy argument that denying the complainant outside counsel has a chilling effect on potential complainants.

Josh is currently pursuing a complaint that directly raises the issue, so presumably we’ll have a definitive answer sometime in the future.  In the meantime, denying the complainant the right to outside counsel in this situation does not strike me as a particularly good idea for agencies.  And, if that’s what your agency is doing, I strongly advise reconsidering the practice.

Outside the EEO arena, there’s something else that comes into play. The Administrative Procedure Act, 5 USC 555(b) provides federal employees with the right to counsel during an agency discipline interview if compelled to disclose information or provide a written declaration to an agency investigator:


A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative. A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding. So far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency function. With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. This subsection does not grant or deny a person who is not a lawyer the right to appear for or represent others before an agency or in an agency proceeding.

So, the complainant who is denied outside representation in the administrative investigation, whether before or after the EEO complaint is filed, may have a remedy that has nothing to do with EEO.

It’s an interesting question.  I guess what I find more interesting, though, is the question as to why the agency would want to deny an alleged victim of harassment the right to outside counsel. 

Sometimes, There Is Only One Answer Left
By William Wiley

I don't remember a lot of incidents from my sophomore years (plural intended) at LSU, but I do remember one in particular. As was my habit, one Friday night I found myself sitting in a bar not far off campus, contemplating the Budweiser label on my beer coaster, when suddenly I felt a forceful - darned-near debilitating - tap on my shoulder. When I turned around to defend my honor from this unprovoked surprise attack, I realized that I was looking up about four feet above me into the face of the meanest, ugliest, Bigfoot-lookalike behemoth of an upper-classman that had ever set a size 16 shoe into that particular establishment. Before I could manage to say anything (because the blood had all suddenly drained to my ankles), this guy bellows out for all to hear:

HEY MEATHEAD, YOU’RE SITTING ON MY BAR STOOL!

Now, I happened to be good friends with that particular bar stool. She and I had spent most every Friday night for several semesters guarding that end of the bar, close enough to the men’s room that I could get there and back quickly, not so close as to be overcome by the smell of disinfectant. I didn't mind her having other friends with privileges when it wasn't Friday night, but come the last day of classes each week, we were a special pair. And certainly no one had ever seen this monster towering over me in this particular bar before; his claim for “his” barstool was both specious and indefensible.

So I had everything on my side. It was not “his” barstool; it was “my” barstool. Every regular in the place knew it, including the bartender who kept a baseball bat nearby to deal with dudes like this one. All I had to do was say the word, stand up for my space, and take this guy on. Yes, I was in the right, he was in the wrong, and I had every reason to teach him a lesson. So what did I do?

I said, “Excuse me, sir. I had no idea. Please sit down and let me buy you a beer.” Then I went to another bar.

You think I'm proud of this? No, I'm not. I'd much rather have a great David-and-Goliath story to tell of how I kicked his hairy backside across the parish line (it was Louisiana, remember?). Maybe it would have impressed the ladies there that night and given me a story to tell my grandchildren. That's what the star does in the movies, and right always overcomes might. Right?

Wrong. Sometimes, might will mess you up. Sometimes you can be perfectly justified in your position and still the bad guy wins. Sometimes you just have to survey the situation coldly, weigh every option you can think of, and do whatever it takes to keep yourself in the game for a few more plays, regardless of what you have to tell the grandkids.

So what does all this reminiscing about college days have to do with the federal workplace? Simple. Sometimes when confronted with a difficult situation, the best thing for you to do is find another bar.

If you’ve been around a while, you've had an employee ask you for advice in a situation like this:

“My boss is a jerk. He is mean, vituperative, and just plain psychopathic. He has targeted me unfairly even though I didn't do anything bad. What can I do?”

Those of us in this business of employment law have a tendency to want to fix things, to make things better for our client, whichever side of the table we sit on. We know a lot of the answers, and we feel good when we are helping others who don't know the answers. So when confronted with a request for advice in a situation like this, our tendency is to rush to the rescue; maybe conduct an investigation, collect evidence that the boss really is a jerk, then report him or her to some higher authority who can do something about it. We want to tell the employee that he has a right to file a grievance and challenge his supervisor’s treatment of him, hopefully getting some relief from some reasonable superior up the food chain. Yeah, that's our predisposition - we are fixers and we want to fix things so they are better.

In reality, however, the best advice we can give the employee (or give ourselves if we are the one on the receiving end of a nasty supervisor) is to find another bar. Sometimes the best answer to a difficult situation is to find another situation, not try to fix the situation you're in. It takes a fair measure of maturity to know when it is better to walk away than to fight, but walking away is sometimes the better option. So if someone asks you for advice on how to deal with a difficult supervisor, or you yourself are on the receiving end of unfair hurtful treatment, consider that he who leaves the fight lives to fight another day. And he who fights the fight often ends up with a barstool shoved up his nose.

I graduated from LSU with a 4.0. (that wasn't my grade point, that was my blood alcohol). And the incident in the bar that night was one of the more important lessons I carry with me. Sometimes you hold them, and sometimes you fold them. The most successful gamblers in life fold more than they hold.

Geaux Tigers!

The Role of Agency Counsel in Fact-Finding Conferences
By Ernest Hadley

It’s the issue that just won’t go away no matter how hard EEOC tries to ignore it—the proper role for agency counsel in the EEO process.  So, here’s a question from one of our union friends wondering if the mode of investigation has any impact on the proper role of counsel:

I have come upon your articles relating to agency interference.  This is something we have a huge problem with here . . . Now, after reading your newsletters on agency interference, I am extremely concerned about agency legal reps being actively involved in the fact-finding conference to the point of basically controlling the meeting as an adversarial proceeding in which they cross-examine witness and complainants.  They have access to and gather and present evidence as well. . .

Now my burning question is this:  are they allowed to even sit-in on the fact-finding conference as reps for the agency?  If I understand you correctly, they should only be part of the ADR process and if it goes to hearing or district court.   If this is the case, do I need to only refer to the MD 110 Chapter 1 and CFR 1614?  Should it just be noted on record and brought to the investigator's attention?  Should they be asked to leave?  I need clarification so I can bring this point to the forefront and get a few things turned around here.

Ok, first things first.  Don’t confuse my opinion with the way things ought to be with the way they are.  You understand correctly that it is my opinion that agency counsel should not be part of the EEO investigatory process, except to the extent that ADR or settlement is involved.  Then, I believe agency counsel has a proper role in advising management on settlement and drafting or reviewing any subsequent agreement to insure it is a legally binding agreement and accurately reflects the terms negotiated.  Let’s be clear, though, EEOC has never said that and the role of agency counsel remains unclear and that has been a major point of my past articles—EEOC needs to clarify the role of agency counsel and the sooner the better.

MD-110 does require that EEO and the agency defense function be entirely separate.  Part 1614 also requires that agencies conduct an “impartial and appropriate” investigation.  My question has always been how can an agency conduct an impartial investigation when someone, namely agency counsel, is involved as an advocate for the agency.  That’s not a criticism of agency counsel.  It’s their role to be an advocate.  It’s more a question of the proper forum for that advocacy.

Now, the question becomes: Should it make a difference if the method of investigation is a fact-finding conference as opposed to some other method of investigation?  My first impression was that the answer was “yes,” in part because there’s a verbatim transcript of the fact-finding conference.  But, ultimately, I don’t see any real reason for altering my answer based on the method of investigation.  One reason for that is the circumstances you’ve outlined in your question.  Two lawyers can make an adversarial proceeding of a simply coffee break.  An EEO investigation is not intended to be, nor should it be, an adversarial proceeding.

Yep, I know that there are folks out there who are going to say, “That’s not how I conduct my fact-finding conferences.”  I’ve been at fact-finding conferences conducted in more or less the way described by our union friend and others where the investigator would entertain questions or lines of questioning to pursue but would not allow either representative to directly question a witness.  The fact that we occasionally get it right doesn’t mean there’s not a need for definitive rules.

Or, maybe there is a definitive rule and we just don’t recognize it.  As I noted in the article in the this edition on The Right to Counsel in Harassment Investigations, EEOC regulations provide that a complainant is entitled to the representative of his or her choosing throughout the EEO process.  Could it be that if EEOC intended agencies to have the same right it would have said so just as plainly in its regulations?

Unfortunately, this is a very long way of saying I really don’t know the answer to your burning question.  But just maybe, if enough people keep asking the question, we’ll get an answer.