Archive for category: News Flash

By Dan Gephart, July 23, 2024

Twenty-two percent.

That’s approximately what is left of the nearly 3,800 case inventory that the Merit Systems Protection Board inherited when its quorum was restored in March 2022. MSPB Chair Cathy Harris’s swearing-in ceremony three months later gave the Board full occupancy, and the race to tackle those cases began in full.

Harris knew she had a monumental task before her, but she wasn’t worried about the actual work.

“I litigated before the MPSB and the EEOC for about two decades before I came into the job. And I thought I knew everything about MSPB cases. Oh, this is going to be easy, so simple because I know these cases.”

It wasn’t.

“There were all these cases I had no idea about which I never experienced dealing with as a litigator – restoration cases, for example. This is not something my firm focused on. And then the fact scenarios of these cases are always surprising. Just when you think you’ve seen it all, something else comes up. I’m not just talking about employee misconduct. I’m talking about how management deals with situations. The number of management errors and strange areas of misconduct that people get themselves into are just truly astonishing.”

We caught up with Harris two weeks after Henry Kerner, the former Special Counsel, was sworn in to bring the board back to full strength. [Editor’s note: We interviewed Vice Chairman Raymond Limon last month and an interview with Kerner is forthcoming.]

DG: Based on the cases you’ve reviewed, what’s the mistake made most often when it comes to discipline?

CH: One of the biggest errors I see is management choosing the wrong charge to try to encapsulate the employee’s misconduct. It shouldn’t be that difficult to choose the correct charge. Sometimes, management overreaches beyond what the employee did, or just mischaracterizes what the employee did and chooses a charge that’s just not appropriate.

To avoid these errors, managers should work carefully with [human resources] staff and attorneys to try to make sure the charge fits the misconduct.

The other thing I’d recommend is to try to resolve cases before they get to the Board. I see a lot of situations that could’ve been resolved through better communication, better performance management, better discipline management, better warnings to the employee instead of letting things get to a head.

I’m a big fan of mediation at the Board. I think if agencies were spending a little more time and resources on mediation internally, a lot of these problems would go away, and they’d have better outcomes with their workforce.

DG: In our interview two years ago, you said the Board was trying to identify cases that might be appropriate for settlement. How did those efforts go? And what did you learn from them?

CH: Our efforts, I think, were very instructive. We conducted a six-month pilot program from October 2022 through March 2023, called RAMP – the Rapid Assessment Mediation Program, where mediators worked full time attempting to settle appeals at the PFR level.

They settled quite a few. But when the pilot ended, we determined that our limited resources would be best used in issuing decisions in our inventory.

We continue to have a mediation process through our [Mediation Appeals Program or MAP], a well-established program in which administrative judges and other experienced, trained mediators on staff at the Board mediate cases. But the numbers are not that high in settlement at the PFR level. At the PFR stage, we find parties tend to prefer decisions. We’ll keep working on that. I do feel parties should be interested in settlement, even at the appellate level.

DG: Are there certain types of cases that lend themselves more to settlement?

CH: The cases in which there had been a change of law since the initiation of the appeal to the time the case was in the RAMP program. For example, the change in law from the Federal Circuit on performance, Chapter 43 cases. The agencies had to prove another element in order to prove their case. Because that wasn’t done across the board, I think those cases were more ripe for settlement.

Also, there was an evolution of law on the [Department of Veterans Affairs] 714 cases. And those also, I think, were more ripe for settlement at the appellate stage.

At the PFR stage, the parties are pretty set in their interpretation of the facts. The laws that evolved, changed, or crystallized, have allowed, maybe, the parties to get into settlement.

DG: Speaking of Chapter 43 performance actions, we’ve seen several remands because of the need for the pre-PIP Santos justification. Can you explain exactly what type of evidence and format the Board is looking for in Santos documentation?

CH: I can’t really speak to that because it’s different in each case. We look at each case very specifically. Agencies do things differently. Their performance management systems are different. There’s no one right way. Employees’ performance expectations are factually specific.

What I can say without giving an advisory opinion here is that the evidence and the format of the performance expectations need to be sufficient to meet the legal requirements of establishing whether an employee successfully performed under their performance plan. But that’s going to look different in each case.

DG: Early on, the Board seemed to be prioritizing whistleblower cases. As you continue to work through the case inventory and new cases, is there a new priority?

CH: Whistleblower cases make up about 25 percent of our docket. It’s a big percentage and we of course take our mission very seriously to protect whistleblowers from retaliation. We’re evaluating everything very carefully.

When I came on the Board, I said that I wanted to prioritize whistleblower cases. I wanted to prioritize cases where the person is most likely to get back pay. I wanted to prioritize cases that involve disability retirement, and pretty soon I’m listing almost every kind of case the Board has. Because they’re all important, right?

We do prioritize certain cases, but at this point it’s about dealing with the oldest cases and the newest cases at the same time.

DG: Have you seen any trends in new PFRs that are being filed?

CH: You know, MSPB cases reflect what’s going on in society as whole. We’re still working through the inherited inventory. I’m looking at cases from 2020, 2021. That’s mostly what’s on my docket now. We’ve been seeing cases involving COVID leave issues, COVID vaccine issues, and the like, issues involving telework, that expanded during the pandemic.

Our approach, which I think has been very successful, is we started with the oldest cases. We were also simultaneously doing the newest cases because we didn’t want to have a permanent case update review team updating the cases due to the passage of time, evolutions in law.

I’m doing current cases and older cases. We’re seeing different trends based on what’s going on in the world.

DG: Those topics – the COVID leave cases, the vaccine cases – bring me right back to 2021.

CH: Yes, it’s a little traumatic to look back, you know.

DG: Where are you at with the inherited inventory? 

CH: We have 22 percent left. I think we’ve done an incredible job. And, you know, agencies have backlogs for a lot of different reasons. I think the way we handled it can be helpful to other agencies and to ours in the future. What we did is very consistent with all the advice we’ve seen on how to handle a backlog of cases.

One, don’t hide your head in the sand, try to have a plan. Do prepare and don’t be afraid to put resources on tackling the backlog and shift things around, add resources, repurpose duties so you can make sure you’re addressing the problem.

The other thing we do really well at the Board is we have a good system for drafting opinions. We have an extraordinary team of lawyers in our Office of Appeals Counsel. They draft decisions for our review. They did an incredible job of queueing everything up for the Board Members.

We also have a very good Clerk’s office, who have done a good job figuring out where the cases are and how to get them to us.

The other thing we did very well–now, I wasn’t there so I don’t give myself credit for this, I credit the career employees, who during the lack of quorum, took the opportunity to transition to an electronically-based system from a more paper-based-system. This builds efficiencies and makes things a lot better, a lot quicker. This, I think, is the first Board to be doing everything electronically. When I first came, they were still carting some paper back and forth to the Board offices. I’ve looked at a paper file maybe five times in the past two years. I love paper, but it’s not efficient.

All of those things have been really helpful. I think staying mission-oriented helps, too. We really care about the fact that parties have been waiting for years for the adjudication of their matters. And that’s not fair. We feel terribly for them. It puts a lot of lives in limbo. So, I think we’re really motivated.

I think all of those things together is a really good recipe for eradicating an inherited inventory.

DG: What you’ve done will be a case study for years to come, I think.

CH: I hope our pain helps other people. I hope it’s helpful to somebody. I’m really proud of the work we’ve done. I think we’re working really hard, and it looks to me like we’re going to be able to wipe out that inherited inventory around the end of this calendar year.

Listen, there may be some cases that hold over because they’re hard or long or strange or thorny, but, for the most part, we should be in really good shape.

DG: According to last year’s FEVS, morale has fallen at the MSPB. What is the agency doing to address it? And what do you think is the cause?

CH: The FEVS scores come out earlier for agencies than the rankings come, so we’ve had that information for quite some time. We’ve been able to start to address it.

I think there are a few causes. It’s difficult for an agency to be without political leadership for an extended period of time. That had a significant impact on morale on the agency. I think the pandemic had a significant impact. There are a lot of unique aspects to our agency that have caused it to come to this.

What we’ve done is initiated what we call the Continuous Improvement Team to try to address the issues identified as most ripe for improvement through the FEVS and our own internal surveys. The four areas we’ve identified we need to work on most are:

• Innovation
• Management communication
• Employee input on decision making
• Work-life balance

This team got under way earlier this year. We have a Professional Association, otherwise known as a union, at our agency. We have members of the Professional Association and managers on the Continuous Improvement Team working together, as well as employees from other areas of the agency outside of the bargaining unit.

We’ve already engaged employees on the topic of innovation, regarding where and how folks feel the agency is not supporting innovation. In order to fix it, we first need to know what people mean.

The FEVS is a great starting point, but it doesn’t give you all the answers.

We need to be willing and able to engage to find out: What do you mean by innovation? How can we do better? What does innovation mean to you? We have to get in deep on these topics and find out ways we can take action.

The Continuous Improvement Team anticipates making recommendations on innovation this summer, which will be followed by more communication, and trying to figure out action items, and then we’ll move onto the next topic.

Listen, we have to try to improve. If we’re not trying, we’re not going to improve. I think we have the most dedicated and intelligent and mission-oriented employees in the entire Federal government. I want them to be happy and I want to understand what will make them happier.

I’m grateful for the FEVS and grateful for the Partnership for Public Service that enables us to look into these issues. We’re looking forward to finding out everything we can do to make things better.

One other thing. This is really important. One of the questions on the FEVS that concerns me most is: “I don’t think my response to the survey is going to make a difference.”

I can assure the employees at our agency that is absolutely false. We are taking these things very seriously. We’re devoting a lot of time and effort to analyzing the FEVS results over five years to try to isolate these areas, to figure out what can be better. We’re putting the time in to have a continuous improvement team.

I really hope people understand we’re taking it very seriously.

One of the areas employees identified is they fear reprisal for voicing concerns. We’ve done a lot of work to try to address that. We’ve done extra training for managers and supervisors this year to address how to handle employee’s perceptions regarding reprisal, how to better communicate.

This is our mission. We need to walk the walk and talk the talk. I want to make sure that’s something everyone knows. That’s something I can do as a leader from the top down to ensure that we don’t tolerate retaliation against any employee.

DG: Henry Kerner was sworn in recently as the third Board member. How important is it for the Board to have all three members?

CH: Two things.

First of all, we’re a bipartisan independent agency. So, having representatives from both parties makes us a better Board. It makes us more credible to the Federal employees we serve and to the public as a whole. You’ll see most of our decisions are unanimous, the vast majority, and I expect that to continue with Mr. Kerner joining us. That’s because the Board has built up a very robust body of law over the past 40 years, and it doesn’t matter what political party you’re a part of: We all support and protect the merit system.

That’s the first thing. It makes us more credible.

The second thing I’m particularly excited about is Henry can help us to get these cases out. The more the merrier, as far as I’m concerned. Henry is a great guy. He’s rolled up his sleeves. He’s already voted, and we’ve already issued some of the cases he’s voted on. We’re happy to have him. He’s a real pleasure.

Gephart@FELTG.com

Related Training

• August 13-14: Hearing Advocacy: Presenting Cases Before the MSPB and EEOC
• September 9-13: MSPB Law Week

By Dan Gephart, June 17, 2024

Just over two years ago, we interviewed the newly sworn in Merit Systems Protection Board Vice Chair Raymond Limon. We discussed how Limon’s previous Federal work would help as the recently quorumed Board planned to tackle an inherited inventory of nearly 3,800 cases in the middle of a pandemic, while introducing a new e-Appeals system.

Limon’s Federal experience is vast. It included roles with the State Department and the Office of Personnel Management, as well as a stint as Deputy Assistant Secretary for Human Capital and Diversity and CHCO at the Department of the Interior.

However, the Federal job that best helped Limon move from a career “get-it-done” mindset to a political “lead-it” mindset was a volunteer position he held early on in his Federal career.

“I’ll be honest: It was the Peace Corps when I was in Honduras,” Limon said. “There you’re sitting in a fishbowl. It’s a different culture, a different language. People have perceptions about you that could be true, maybe not true. But all eyes are on you. That kind of vulnerability and confidence and willingness to make yourself vulnerable. I took a lot of those Peace Corps experiences I had to go through at a younger age, now I’m sitting at this table [here at the MSPB for my first transition briefing]. All the career executives are getting ready to brief me. I used to sit in that exact same seat you [the Board staff] used to sit in. I didn’t want to be that person that says: ‘This is what you have to do. You have to do this right away.’”

Limon very graciously took time to talk with FELTG last week over Zoom.

DG: Last time we spoke, you had just been sworn in. Tell us what those early days were like.

RL: A lot of that was listening to (MSPB staff), determining: What are the strategies [to tackle the inherited inventory]? What are the best practices we should focus on? And knowing, at some point, yes, we’re anticipating Cathy’s arrival. [Editor’s note: MSPB Chair Cathy Harris, at that point, had not yet been confirmed.] You want to get stood up, but not get ahead of your skis. You also want to make sure Cathy was set up for success.

As I think back on it, first and foremost it was the wellbeing and safety of our employees. Even though it seems like 20 years ago, it was two short years ago and people were still getting vaccinated and workplace safety practices were in place.

DG: And you had the inherited inventory of cases waiting for you.

RL: The expectation from the White House was: Get busy. Get started on these cases right away. I talked with all of the experts here to get their suggestions on what we should be doing to take on that inherited inventory. We wanted to make sure from a data collection standpoint that we were differentiating between inherited inventory and ongoing inventory.

Our progress has been demonstrated. [Editor’s note: The new Board started with an inherited inventory of 3,793 cases. As of the end of May, they had completed 78 percent.] We also post our progress monthly on the Board’s website. That’s a testament to the team, and all these different stakeholders, to make sure everybody was in the room, that they could hear the famous NASA “Go. No Go.” Make sure everybody was in step before we implemented.

It’s a great story, and I think it offers a lesson for other agencies if they ever find themselves in a similar situation. We dealt with a lack of leadership appointments, but other agencies can have unexpected inventories based on technology issues, budgets. The kind of practice we went through can be a map for another agency.

DG: What can other agencies learn from your approach?

RL: First of all, always listen to your experts. They have not only dealt with these issues for a number of years, they have also anticipated your arrival and come up with some good strategies.

As I alluded to earlier regarding my service in the Peace Corps, I needed to stop, slow my roll and listen so I could better understand the culture, better understand the pain points these people had gone through over the last five years, which was very unique.

I’ve been on that side of the table so many times, when a political team comes in. They sometimes don’t have the patience for you. Half the time in the briefing, they’re not paying attention, they’re on their Blackberries. I didn’t want to be that guy. Going back to my beginning, being a Peace Corps volunteer has probably suited me the best for the job I’m in.

One thing I would not sleep on is your IT infrastructure. You can be coming up with all the ideas but if you don’t have capacity to get that information out to your stakeholders, it’s not going to work.

We were facing a challenging time, rolling in a brand-new e-Appeal system, away from a homegrown series of software and IT systems that helped collect some of our information. At some point the legacy systems aren’t going to be supportable.

Again, don’t get ahead of your skis. If we were going to get out there fast reducing the inherited inventory, we needed the confidence our IT system could keep pace.

DG: Based on the cases you’ve reviewed, what’s the mistake made most often when it comes to performance?

RL: I’ll put the bottom line up front: It starts with supervisors. People typically don’t leave the agency necessarily for more money. They leave their supervisors. When it comes to performance management we have to step back. I really do believe performance is a team event, everything from design of your performance program to the development of the performance standards to how you communicate that with your team, how you work with your unions, to roll out, etc. Going back to IT world. I’m at that age and experience, where I transitioned paper processing for time and attendance and/or performance management systems to a web environment and it is not easy.

It’s very important that the supervisor take his or her role seriously, understanding the performance management system, being involved at the beginning stage of it, the communication side of it, understanding how developing your employees is the right thing to do.

Now that I’m, of course, adjudicating and ruling on these cases where employees felt like they were not being treated fairly in the performance process, or management is defending its actions, it basically comes down to there was a communication breakdown. If the standards weren’t completely clear, did they come down from the strategic goals to department goals to office goals to the employee?

When we develop performance standards and metrics, every employee needs to feel it was written for them, to be able to say: “You understand me. This is what I do. It makes sense, now I’m now going to go out and do it.”

A lot of times supervisors, when they don’t clarify and they’re not involved in process, they kind of treat it like they have to instead of they get to, some kind of communication mishap is going to occur, and it manifests itself into litigation. I do see the worst of the worst of that.

I also know from sitting on the CHCO Council for 16 years, there are success stories. There are good ways to do it. It’s not all doom and gloom. In my world, I’m seeing the manifestation of the lack of communication, supervisors not taking their jobs seriously because of several reasons – one being, they were appointed to be supervisor and shouldn’t have been. They didn’t have the competencies, the ability to be a supervisor.

Are agencies holding the probationary periods for supervisors in check? Some do. Some don’t.

Are supervisors being rewarded for growing their people? When supervisors turn down shadowing opportunities to allow employees to go out and strengthen their skillset, but their managers are hanging on tightly, saying I can’t lose you. Nobody else knows how to write that report. There’s no way I’m going to let you go off to training or that detail.

That’s where we’re missing the forest through the trees. When supervisors are so locked into the tyranny of the present, they forget their role as a supervisor is spending at least 25 percent of their time, according to OPM’s supervisory guide, managing and developing people.

DG: What trends are you seeing in new PFRs that are being filed?

RL: I’ve not necessarily noticed a change in types of cases we’re getting. Maybe this is more of a byproduct of the growth of the Board. Through e-Appeal, we’re finding, in my humble opinion, that moving of data and pleadings is happening more efficiently. Looking at the inherited inventory, there were a lot of issues about timeliness, for instance. Was it completely faxed in on time? Did the person receive notice? There was some of that.

We’ll continue to see a significant number of whistleblowing cases. I think 20-25 percent of our cases involve some level of whistleblowing, either as an affirmative defense or an individual right of action. I think that trend line is going to continue to grow.

DG: The Board recently issued a “Notice of Opportunity,” which it has rarely done. I know you can’t talk about the specifics of the case in question, but can you describe the process that leads to a decision to issue a similar notice?

RL: Under the Board’s regulations, when we are looking at a case of first impression or something that we believe needs clarification, we can solicit stakeholder feedback. Recently, we did this in a matter that involves the whistleblower statutes and asked our stakeholders for their viewpoints on the questions we posed.  Also, even though I’ve been in multiple agencies and worked with many employment attorneys over the years, I can say unequivocally the best attorneys work here at the Board. No knock on anyone else, but these attorneys are the best.

They live and breathe it. They read all of the opinions coming from the different courts. We shouldn’t rely on our own hubris. It’s OK to ask for help. With our regulations, we have the authority to go out and ask for briefs. As in our recent notice, we post a couple issues, see what the public thinks. Bring that back in and, hopefully, we start to draft and finalize that opinion.

Gephart@FELTG.com

For more on the Board’s happenings and cases, check out FELTG’s newly-updated class Advanced MSPB Law: Navigating Complex Issues, July 9-11.