Archive for category: February 2016

By William Wiley

In one of the last scenes in The Hunt for Red October, Jack’s with the good Russians in the Red October when Viktor Tupolv, captain of the bad Russians in another submarine, against the wishes of his crew, arms his torpedoes in their tubes before firing them. You see, the reason this is a bad idea is that if the pre-armed torpedoes don’t immediately hit their target, they can circle back and destroy the submarine that initially fired them. Which, of course, is what happens in the movie, thereby destroying the Russian submarine and crew while allowing the Red October to escape to the good old US of A. Just before the pre-armed torpedoes complete their circle and are about to explode the Russian sub, knowing that death is imminent, one of the crew members turns angrily to Captain Tupolev, and says, “You arrogant ass: you’ve killed us!” Then, “Boom,” the end, just like real life is supposed to work.

Right now, you are probably asking yourself “Where the devil is Wiley going with this one? Isn’t this supposed to be a newsletter about federal employment law?” Well, watch this segue, those of you who are faint of heart readers.

Some of you might remember that back in 2010, this newsletter sounded the alarm bell when the two “new” members of MSPB issued three decisions that threw the business of federal employment law for a loop.  Known as The Terrible Trilogy, the cases of Lewis/Villada/Woebcke redefined the importance of comparative penalties in the Douglas factor analysis defending the penalty selection, essentially requiring agencies – for the first time in history – to implement the same penalties for similar misconduct throughout an agency. Since 1981, penalties given to other similarly-situated employees had always been one of many considerations in determining whether a penalty was reasonable. Post-Trilogy, that consideration was raised to a very high level, requiring agencies that fire employees for misconduct to lose their cases and have to reverse the removals if on appeal the employee-appellant could point to other cases like his in which the agency did not implement a removal. Reversal was to become the outcome even if otherwise the employee had engaged in misconduct if the evidence demonstrated disparate penalties.

Man, oh, man, did this reporter have a criticizing fit when The Trilogy was issued. First, it is physically impossible to track all the misconduct within an agency, and then assure that everyone gets the same penalty. Can’t humanly do it because you’d have to know all the MISCONDUCT (not just all DISCIPLINE) within an agency, and somehow centralize all of the agency’s decision making. Second, within weeks, smart agencies realized that discipline within the philosophy of The Trilogy made the most sense if the agency always administered the most severe discipline option available. As a practical matter, an agency could best defend itself if it always terminated for a particular act of misconduct, thereby keeping the bar set high for the next similar acts of misconduct. Doing anything less than removal today could hamstring an agency well into the future for years.

Officially, The Terrible Trilogy remains good law at the Board today. In 2012, new Member Robins wisely dissented from the direction this philosophy was taking, arguing that The Trilogy “attempts to promote a universal consistency in penalty setting, without identifying any legitimate individual interest or broad value under the Civil Service Reform Act that is being promoted.” Boucher v. USPS, 118 MSPR 640 (2012). Unfortunately, Member Robbins is only one vote on a three-member Board, and The Trilogy lives on, despite his disagreement.

Which brings us to appeal decisions released just this month. As most everyone who has had access to the news media these past couples of years knows, our friends at the Department of Veterans Affairs have caught Congressional-Hell because of what has been seen as unaccounted-for gross managerial misconduct on the part of certain senior executives at DVA. So loud has been the outcry that Congress created a law that allows the Secretary of DVA to fire SESers with relatively little due process and a truncated appeal to a single MSPB administrative judge. The goal was to make it easier for DVA to hold its senior leadership accountable by enforcing discipline based on perceived acts of misconduct, with exceedingly little oversight.

DVA has been trying to take advantage of this new law. It has disciplined several SESers within the past 18 months, the appeal results of three of which were released just last week (two demotions and a removal). And guess what: all three were reversed by the Board’s judges, and two of the three reversals (the analysis of the third has not yet been released) were based in large part on the disparate penalty philosophy of The Terrible Trilogy. Yes, charges of misconduct were sustained in both cases. However, even in spite of the proven misconduct, the judges applied The Trilogy, found other employees who in the opinion of the judges were similar-enough to the appellants to warrant the same discipline, and who DVA had chosen not to discipline because the Deciding Official at DVA saw the misconduct of the others to be significantly less harmful. When confronted with such disparity, the judges dutifully applied The Terrible Trilogy and reversed DVA’s demotions of the two individuals. Rubens v. DVA, PH-0707-16-0151-J-1 (2016) and Graves v. DVA, CH-0707-16-0180-J-1 (2016).

Focus on the essence of this situation for a moment:

1. Congress wants it to be easier for DVA to discipline its senior leadership.
2. DVA has embarked on an effort to comply with this Congressional mandate.
3. However, DVA has been frustrated in doing so by MSPB’s Terrible Trilogy philosophy.

As a result of these reversals, it was reported last week that the leadership of DVA is going to try to get its SES appointees removed from Title V of the United States code so that the nasty old MSPB will no longer have jurisdiction over DVA’s attempts to hold its employees accountable . In other words, DVA wants MSPB to go away in large part because of The Terrible Trilogy, the exact cases the FELTG newsletter warned the world about back in 2010. If DVA leadership manages to get Congressional action to move MSPB out of the picture for its SESers, how long will it take for DVA to recognize the huge benefit of no MSPB oversight, and push for legislation that would apply the no-MSPB approach to ALL of its employees? And after that, how long will it be before other agencies see that DVA can hold its employees accountable more easily than can they, and then they will ask for similar MSPB-exclusion from Congress for their agencies?

Captain Tupolev arrogantly launched his torpedoes armed in their tubes, thereby destroying himself and his crew when they circled around. The Board Members at MSPB arrogantly issued The Terrible Trilogy in 2010, mandating that all agency discipline be the same. The Trilogy has now circled around, in the eyes of some allowing senior government managers who have engaged in misconduct to escape accountability for their misconduct. And the result may well be that MSPB becomes irrelevant to government oversight as agencies apply to Congress to be excluded from its jurisdiction. In fact, the day may well come when Congress sees no need for an MSPB whatsoever because of the impediments to accountability that it creates as it decides cases, and the dearth of agencies willing to be constrained by its wacko decisions like The Terrible Trilogy. If that happens, do you know what we’ll all hear in the distance because of what the Board has done to itself?

Boom! Wiley@FELTG.com

By William Wiley

We don’t often write about pending legislation in our newsletter for two reasons:

1. Most bills do not become law, and
2. Tentative legislation confuses people (your humble reporter included) because it’s hard to remember, “Did that thing ever pass or did I just read about it?”

However, we’re going to make an exception this time because this bill, if it becomes law and is properly implemented, could save your life.

S. 2450, the bi-partisan “Administrative Leave Act of 2016” recently was voted out of committee and thereby has a decent chance of becoming law. The main purpose of the bill is to restrict the use of administrative leave (i.e., excused paid absence approved by agencies), not doubt in response to recent news reports about federal employees being on paid administrative leave for months and years because their supervisors (who apparently have not been to FELTG training) could not figure out what to do with them.

A number of agencies have embarked on a program to restrict the use of administrative leave even without this proposed legislation. I think we would all agree that the image of a federal employee sitting home watching soaps while drawing his six-figure salary when hard-working non-feds are fighting for a $15 federal minimum wage is enough to make one want to storm the Bastille.  Government waste is on the front pages a lot this year, in large part because of the upcoming Presidential election. Feeding such stories of government ineptitude to the populace is a tried-and-true method for getting folks to vote.

As much as we all might agree with the desire to curb excessive administrative leave, there are some times that the use of short-term administrative leave is not only desirable, but may be a life-and death matter. Those of you who have attended our supervisory training program, UnCivil Servant, know that we are big believers that once a supervisor has issued an employee a proposed removal letter, that employee should be removed from the workplace until a final agency decision is made on the proposal.  The main reason is that an employee who has been given a proposed removal is under a huge amount of stress, and stressed-out people sometimes become angry and dangerous. The Bureau of Labor and Statistics estimates that every workday of the year (Monday – Friday), about two people are killed by a coworker in a worksite. And you don’t have to read many news reports about those homicides to learn that many of those killings are directly related to workplace discipline or termination.  There are a number of other reasons, as well, to get people out of the workplace (e.g., curtailing access to sensitive agency information available to the about-too-be –fired employee who will soon be in need of some money), but the potential for homicide is the number one reason.

Unfortunately, a number of agencies (and other versions of administrative leave restriction proposed legislation) swipe at administrative leave control with a broad brush, failing to see the significant benefit of getting the employee out of the workplace once removal is proposed. As every reader of this newsletter knows, back in 1978 Congress said that any federal employee who has a removal proposed is entitled to 30 days of paid notice prior to the removal being effectuated. Agencies that restrict all administrative leave, regardless of duration or need, place employees in a dangerous situation once a proposal to remove is issued.

S. 2450, fortunately, addresses the need to get employees out of the workplace once a removal is proposed. While restricting administrative leave in other situations, this bill creates a new form of excused paid absence to be known as Notice Leave. Such leave can be implemented by an agency for the length of the notice period prior to a removal, most likely the 30-days created by Congress in 1978, but not necessarily so restricted should the agency grant a longer notice period. So all you federal employees out there who are reading this article and have concern for your own life as well as that of your coworkers and citizen clients of your agency, contact your Congress Members and Senators. Tell them you LOVE-LOVE-LOVE S. 2450 and that you hope they will vote for it.

The main downside to the legislation, however, is that it leaves it up to agencies to decide when Notice Leave should be used rather than mandating that it should be used in every proposed removal. The problem with that is that some idiot at some agency is going to decide that he can predict who is going to be dangerous after being given a proposed removal, and that only potentially dangerous employees should be placed on Notice Leave. That is SO foolish and arrogant. NO ONE can predict who is going to go over the edge once a proposal is issued.  Read the news reports about workplace homicides. In my collection of such articles, over half of the killings “came out of nowhere.” “She was so nice. No one would have guessed that she could become violent.” There is a special place in Hell (thank you, Madeline Albright) for individuals within agencies who declare that they can predict who is going to be violent, thereby arrogantly putting other people’s lives at risk.

Hey, all you policy makers out there. If S. 2450 becomes law, put on your grown-up pants and make an important policy decision for your organization. Accept that every employee who is issued a 30-day notice of a tentative removal can become life-or-death violent. Then, in line with the new law, issue a policy that within your organization, EVERY SINGLE EMPLOYEE who has a removal proposed will be placed on Notice Leave until the final decision is issued. After that, make sure that the darned decisions are issued not much later than 30 days, and the world will be a better place: Congress will be happy, the employees at your agency whose lives have been spared will be happy, and here at FELTG, we can finally put aside one of our big soap box speeches that we’ve been preaching for the past 15 years. Wiley@FELTG.com.

By William Wiley

One of the great gifts of the Civil Service Reform Act of 1978 was the ability for agencies to remove poor performers using what have come to be called the “432” procedures. Misconduct removals (non-performance terminations) rely on the “752” procedures that have been around since the cooling of the Earth. The 432 procedures were brand new back in 1978 and have several advantages for agencies over the old 752 procedures:

• A lower burden of proof to support the removal (substantial evidence rather than the preponderance required for 752 removals).
• No mitigation of the penalty (under 752, agencies have to a Douglas Factor analysis to defend their removals) because the agency does not have to prove that the removal promotes the efficiency of the service.
• All that really matters is what the employee does during the performance improvement period (the PIP or the Opportunity Period). Pre- and Post-PIP performance does not weigh into the calculus of a correct outcome.

Most federal agencies are covered by the 432 procedures. However, by statute a few are not, the U.S. Postal Service being the largest agency that is not covered. Therefore, the non-covered agencies have to use 752 procedures for everything: performance and conduct.

It is our experience here at FELTG that at least a couple of agencies who are not covered by 5 USC Chapter 43 (the 432 procedures) still like the idea of using a PIP when confronted with a poor performer. The question then becomes, what are the pros and cons of using a PIP in a world controlled by the 752 procedures.

First, the traps to avoid. Even though a Chapter 43-excluded agency might choose to develop a PIP approach to unacceptable performance problems, it does not thereby give itself the big 432 procedural advantages of a lower burden of proof and no need to prove the efficiency of the service using the Douglas Factors to defend the penalty. As a practical matter, although there’s no case law squarely on point, it would be perfectly reasonable for an arbitrator to expect to see a Douglas Factor analysis in a case in which the agency fires the employee for failing a 752-PIP, perhaps even insisting that an appropriate alternative to removal might be a suspension. A penalty ruling like that would be antithetical in a 432 performance removal, but not necessarily irrelevant in a 752-PIP removal.

However, even without these two big advantages, a 752-PIP approach to poor performance still has a significant advantage when compared to regular misconduct 752 removals. In a classic case of misconduct, the agency has to do an investigation into an act of rule-breaking conduct that has occurred in the past. It has to collect hard evidence to support a lot of facts that would be critical to proving the elements of whatever charge it comes up with. For example, did the employee walk out with an agency laptop in his backpack on January 15? Was the employee on notice that the start of his shift was 8:00 AM? Has the supervisor failed to enforce the rule in the past, thereby excusing the employee from obeying the rule today? These are all factual determinations that must be made, sometimes based on scant evidence or blurry security camera images.

Now, compare that with a PIP approach to poor performance. In a PIP situation, the supervisor is telling the employee that what is important is what happens in the future (during the PIP), not what happened in the past. Therefore, there’s no need to collect evidence relative to past performance because during the PIP, the supervisor will be collecting evidence of unacceptable performance as the PIP goes forward into the future. When we consult with supervisor clients during the PIP process here at FELTG, we review the supervisor’s efforts on a weekly basis and give immediate feedback as to the quality of the necessary PIP counseling as well as the adequacy of the evidence of poor performance that is being developed. That way, the supervisor can tweak her efforts during the PIP while evidence is being collected, thereby providing the employee better feedback and simultaneously building a more defensible action, should she decide at the end of the PIP that removal is warranted.

The PIP approach to performance-based removals under 752 lacks some of the great advantages of a classic 432 performance removal, but still gives us good reason to use it. Just be sure that you don’t make the mistake of thinking that if it talks like a PIP and walks like a PIP, you can use the lower burden and no-Douglas approach of a 432 removal. Wiley@FELTG.com.

By William Wiley

Pop Quiz: You have flipped a coin five times and it has come up five heads five times in a row. If you were to bet on the next flip, what would you pick: heads or tails?

A lot of people would pick tails, believing consciously or subconsciously that the fact that the coin has previously landed on heads several times somehow is evidence that the next flip is more likely to be tails. And when doing so, they would become victims of “The Gambler’s Fallacy.”  You see, there’s a tendency in humans to see patterns, to look for balance in an otherwise unbalanced world. The next time you’re in a big casino in Las Vegas [Note to self: a great location for an FELTG seminar!], look closely at the video screen next to the roulette wheel. When you do, you’ll see that a lot of casinos will track how many times red or black has come up in a row and display that number for all the future gamblers who might not otherwise bet on the spin of the wheel, but who start pulling out the Benjamins when they see that noir or rouge has shown itself five or six or ten times in a row.

And that’s why big casinos have a lot of your money; those guys paid attention during the first day of statistics while you were checking your Facebook page for the most recent updates by Justin Bieber.  Statistically speaking, the act of flipping a coin at this very moment results in a 50/50 chance of either side coming up, regardless of which sides have come up previously. The past does not control the future of a random event such as coin tossing or roulette wheel spinning.

But not so for the decisions of judges. In one recent study, investigators reviewed over 150,000 decisions by immigration judges in cases in which the individual appearing before the judge was seeking asylum. The results show the subconscious application of the Gambler’s Fallacy to those decisions by those judges. If the immediately previous case resulted in the judge granting asylum, the next case was about one percent less likely to result in an asylum grant. If two cases in a row resulted in a judge granting asylum, the judge was five percent less likely to grant asylum in the third case. Daniel Chen, Tobias J. Moskowitz, and Kelly Shue, “Decision-Making under the Gambler’s Fallacy: Evidence from Asylum Judges, Loan Officers, and Baseball Umpires,” Fama-Miller working paper, March 2015.

You see, judges have memories whereas coins do not. Judges know that they are hired to make decisions, and they subconsciously apply the Gambler’s Fallacy to their decision-making, working to bring order to an otherwise disordered world. If some applicants deserve asylum, then there must be others who do not, or we wouldn’t need judges to make the distinction.

I first ran into this phenomenon way back in 1992. The Board had been issuing decisions for over ten years by that time, ironing out word by word what the “new” Civil Service Reform Act was directing agencies to do when firing bad employees. Upon reviewing MSPB’s annual reports for each of those preceding years, I noted that the Board was upholding removals at the rate of about 78% each year.  In an article I wrote (for a lesser newsletter) that year, I opined that this trend didn’t make sense. Yes, during the early ’80s when the CSRA was initially being interpreted, you’d expect agencies to be making mistakes. There were a lot of new terms and procedures to be understood, and it’s only through trial and error that terms and procedures come to have a definitive definition in a business based on adjudicatory oversight such as our civil service.  My surprise was that the appellate loss rate for agency removals did not drop each year during the decade as we all came to learn what the CSRA was all about.

And my surprise has not diminished in the quarter-century since that original epiphany. In this past year, and in fact every year since that time, the agency success rate on appeal hovers right around 78%. Why has it not improved since that time? Why are we no better at removing bad employees today that we were back in the early ’80s when the Board’s decisions could be read from first to last over a weekend? And if you’re a real purest, why does an agency EVER lose a case on appeal? Have any of you readers ever been involved in a case in which the agency fired someone with full knowledge that it had somehow removed the employee incorrectly?

Could it be … Gambler’s Fallacy? All labor relations specialists know that it is black letter law in the arbitration community that an arbitrator will not stay in the arbitration business very long if she always holds for management regardless of the merits of the cases brought to her. Is it possible that the Board and its judges are subconsciously prone to sometimes set aside agency removals because if it ALWAYS upheld the agency, it would be seen as not doing its job? It only makes sense that if some agency removals should be upheld, others should not or otherwise we wouldn’t need judges.

And it only makes sense that if a coin has come up heads five times in a row, the next flip is more likely to result in a tail. Of course, that’s undeniably wrong, but it still makes sense. As does a flat Earth, ghosts, and lucky charms.

There is a treatment for Gambler’s Fallacy among judges that has been shown to reduce the effects of its bias:

1. Publicly acknowledge that the bias exists, thereby encouraging the judge not to succumb to it.
2. Assign judges different types of cases in a dispersed order, thereby reducing the carry-over effect from one removal case to the next.
3. Periodically review decisions to evaluate if the Gambler’s Fallacy is having an effect on decision-making and provide feedback to the judges as to how they are doing relative to the bias.

We are starting to learn that a LOT of our biases are subconscious, and that we have them even though in our hearts we believe we do not (yeah, I’m looking at you, Presidential Candidates). MSPB and EEOC would do the country a service by assessing their own judges for the tendency to give in to the Fallacy bias and to take steps to reduce it. Wiley@FELTG.com