Agency Concerned About Telework as Reasonable Accommodation Request: Should It Request More Medical Information?

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By Deborah Hopkins, Ann Boehm, and Bob Woods, September 1, 2020

Here’s a hypothetical reasonable accommodation case to consider:

An employee requests telework due to a medical condition, specifically because of the side effects of the medication being taken for the medical condition. The medical information provided by the health care provider states that the medication being taken causes sleepiness and precludes the employee from driving. Can additional clarification be requested from the employee’s healthcare provider to ensure that the medication being taken by the employee will not affect his ability to perform his essential functions, specifically to handle potentially private information, including personally identifiable information (PII)?

We sure love hypotheticals. Because FELTG is a training company, we can’t give specific legal advice about this scenario. But your authors got together (well, virtually anyway) to discuss some things the agency should probably consider.

 

The telework request

Sometimes, folks overthink these situations too much. In this time of pandemic, thousands more employees are working from home. It’s still the same work with the same duties and responsibilities, just in a different environment. The employee is responsible for properly safeguarding PII at work, so that’s still a requirement at home. Is the agency allowing other similar employees to work from home? If so, how do THEY safeguard PII? If this employee fails to safeguard PII, the agency should deal with it when it occurs and take appropriate action to hold the employee accountable.

In cases like the hypothetical above, supervisors are often concerned that they can’t keep an eye on the employee to make sure they’re getting their work done and aren’t malingering. There are ways to deal with such concerns. For example, while teleworking, the supervisor can assign projects with specific deadlines or require periodic updates by phone or email. They can also have Zoom or Skype meetings, etc. They just need to think through how they monitor work while in the office and then try to replicate that as well as possible in the virtual environment. If the employee’s production decreases or the employee doesn’t respond in a timely fashion to phone and/or email, then the supervisor just deals with that like they should in the normal workplace (i.e., follow FELTG’s performance cases outline to hold the employee accountable).

The medical request

We know from EEOC cases that assuming or speculating that a certain disability will result in a particular behavior, without any evidence or history of such behavior, can get agencies in trouble. See, e.g., Matilde M. v. SSA, EEOC Appeal No. 0120140147 (Jan.17, 2017); Smith v. Navy, EEOC Appeal No. 01A40794 (June 8, 2006); Lamb v. SSA, EEOC Appeal No. 0120103232 (Mar. 21, 2012).

In our hypothetical, drowsiness as it relates to driving is the reason for the telework reasonable accommodation request. An agency should be very careful not to read into something for which there is no evidence. Drowsiness or sleepiness does not automatically suggest other issues. (In fact, all of your authors have been groggy on the job a time or two.) Grogginess does not automatically mean an employee cannot do the job, and without a direct link to the essential functions – for example, operating machinery or driving – it can be risky to assume one cannot. Lots of medications warn against driving, but that’s a different cognitive need than getting certain types of work done.

Agencies can ask for medical information to substantiate the need for accommodation, and to help understand the functional limitations. If the agency in the hypothetical above accepted the medical information as written (employee needs to telework because they can’t drive due to the effects of medication), granted telework, and the accommodation is working and there are no problems with the employee’s performance or conduct, then why would the agency need additional medical information about the performance of essential functions based on the driving restriction alone?

The bottom line

Telework can be an effective and reasonable accommodation. Whether it’s being permitted as an accommodation or just as a workplace flexibility, supervisors need to determine how they are going to assign and monitor work and how the teleworker will maintain security and PII.

Remember, it’s the same work, just a different location. As for requesting medical information regarding an accommodation, stay focused on the critical elements of the job. Remember, an accommodation is provided to enable the employee to perform the essential elements of the job. If necessary, the employer may request the medical practitioner to answer the following:

  • Nature, severity, and duration of disability;
  • Explanation of impact of disability on and off the job;
  • Extent to which impairment(s) limit ability to perform functions of job;
  • Estimated date of full or partial recovery;
  • Medical professional’s assessment of individual’s ability to successfully perform essential functions of position;
  • Explanation as to how the particular accommodation will assist individual in performing essential functions of position.

We’ll be discussing challenges related to unseen disabilities in more detail on September 8 during the virtual training program Accommodating and Understanding Employees with Hidden Disabilities, and we also have an entire virtual class dedicated to handling employee medical information during Absence, Leave Abuse & Medical Issues Week, September 28-October 2. If reasonable accommodation requests are something you deal with, you will definitely want to join us. Hopkins@FELTG.com

The Good News: Now’s a Good Time to Work on Your Pandemic To-Do List

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By Ann Boehm, August 19, 2020

Here we are, in Month Six of the COVID-19 Pandemic, and not much has changed. Many of you are still teleworking. Some are gradually returning to the workplace. Some of you never left the workplace. Regardless of your status, there’s no doubt that the day-to-day existence of your job is different and likely will stay different for a while. That’s why I think it’s a good time to work on a to do list that is specifically focused on the oddities of working through a pandemic. So here goes:

1 – Get moving on performance and disciplinary actions, and investigations. When the virus hit and people were suddenly told not to come to work, many agencies put any performance and disciplinary actions on hold. Same for investigations. The logical thinking was that everyone would be back to work pretty soon, so why not wait until then to move on serious personnel matters. Now we realize that “pretty soon” is still not happening. It’s a bit odd to serve a proposed removal virtually, I realize, but there’s nothing illegal about it. Employees who want an oral reply can do so virtually. And decisions should certainly be issued sooner rather than later. It may seem unkind to remove an employee during the pandemic, but leaving a proposal hanging for too long is hard on everyone – the employee, the supervisor, and the co-workers. Investigations may be different in the virtual world, but technology will allow you to interview people and review documents. We don’t know when this will end, so don’t keep putting things off.

2 – Assess what’s working and what’s not in the virtual world. It’s very possible that the virtual world is making your workers more efficient. Or it may have negatively impacted your office’s ability to perform its mission. It is important for you to do an honest assessment of what is working and what is not. You may have a whole new appreciation for teleworking if you see that your workers are more efficient. And if you demonstrate that some mission requirements just cannot be done virtually, you will be better able to determine which employees need to return to the workplace. The key is to be honest.

3 – Review performance plans. Pandemic or not, employees are still expected to perform. That being said, you need to review the critical elements in your employees’ performance plans to determine whether they are accurate expectations during the pandemic. You may need to do some tweaking to reflect the reality of telework or safety issues.

4 – Be aware of your agency’s return-to-work policies and make sure your employees know about them. CDC guidance. Agency guidance. Department guidance. The safety requirements for returning to work will include things like temperature taking, sanitizing, and of course, the controversial wearing of masks. Find out what policies are out there. Read them. And make sure your employees receive them.

5- If you supervise bargaining unit employees, read what the national unions have said about return to work. The national unions are insisting on strict workplace safety protocols. AFGE, for example, has a list of 10 return-to-work principles posted on its website. It’s important to know what the national unions are saying so that you can work effectively with the local bargaining units to ensure all employees are complying with workplace safety protocols.

6 – Develop a plan for how to handle employees who do not comply with safety protocols. You can pretty much plan on some employees not wanting to wear a mask. Or they may not wear them properly. What are you going to do when that occurs? Figure out a plan. Warnings will probably be a wise first step. And you may need to take disciplinary actions. No one said this would be easy, folks.

7 – Take advantage of any spare time you have and read agency policies you may not have read for a while (like Leave, Misconduct, Investigations, Performance). When I conduct training, I like to remind supervisors, and HR specialists, and counsel to read agency policies. Too often we get complacent and forget to review the policies we think we know so well. If you are still teleworking, use downtime to look over some of the agency policies most relevant to what you do.

8 – Read the OPM guidance on COVID-19 Leave. The Families First Coronavirus Response Act created a new type of leave that is specific to COVID-19. OPM issued detailed guidance about the leave. Your agency may have provided supplemental guidance. You are going to have employees who get COVID-19. You will have employees who need to be quarantined due to exposure to someone with COVID-19. Get ahead of this by reading available guidance on how to handle employee leave if any of this occurs.

9 – Talk to your employees and find out how they feel about their current work situation and return to work. One of the most surprising things to me about the pandemic is how wrong I have been in predicting other people’s perception of danger during the pandemic. Some people who I thought would be very worried are not worried at all, and others I figured would be happy-go-lucky are terrified. You really cannot guess how anyone is feeling about their own personal risks and family member risks. We can assume, based upon what I read in the media, that most people are very concerned about the safety of being at work. It’s important that you find out how your employees feel about returning to the workplace. They may need to come to work despite their fears, but at least you will know in advance about their worries and be better able to manage the situation.

10 – Talk to your supervisor about your concerns and make sure you understand what’s expected of you as the pandemic continues. Pretty much everyone except the President has a supervisor. Our training focuses mostly on how supervisors interact with the employees who work for them. But it’s also important for supervisors to talk to their supervisors about their feelings during the pandemic. Don’t operate in a vacuum. Boehm@FELTG.co

The Good News: Federal Labor Law Doesn’t Have to be (and Shouldn’t be) Political

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By Ann Boehm, July 15, 2020

Nice article title, Ann. How can Federal labor law not be political? Isn’t everything political these days?

I will acknowledge that the three-member Federal Labor Relations Authority, like the Merit Systems Protection Board, is usually comprised of two members of the President’s political party, and one member of the opposing party. (The Federal Service Labor-Management Relations Statute (Statute) actually says it is composed of “three members, not more than 2 of whom may be adherents of the same political party.” 5 U.S.C. 7104(a).) I will also acknowledge that over its 42-year history, FLRAs during Republican administrations have tended to be more pro-agency, and FLRAs during Democratic administrations have tended to be more pro-union.

Currently, I think we can say pretty conclusively that this FLRA is listing to the pro-agency side. One union recently filed a lawsuit and alleged unprecedented FLRA bias in favor of agencies. Federal Education Association v. FLRA, Civil Case No. 19-284 (RJL) (D.C.D.C. March 30, 2020).

Personally, I’m not sure that this FLRA’s decisions in favor of agencies are all bad. Some of the decisions correct past FLRA pro-union bias.

What concerns me as a long-time watcher of FLRA law is how the political shifts continue to happen. I haven’t done a statistical study, but it’s fair to say that the Obama Administration FLRA was a bit (maybe more than a bit) pro-union. This FLRA then comes in and reacts by being pro-agency. Next time there’s a Democratic administration, we will likely see a swing back toward the unions. And so on, and so on.

The thing is, it shouldn’t be political. Let’s start with the premise expressed by Congress in the very first lines of the Statute. To paraphrase: Congress stated that the right to organize, bargain collectively, and participate in unions is in the public interest. 5 U.S.C. 7101(a). Federal sector labor relations activities are supposed to benefit the taxpaying public. I’m not sure that’s always the case — and that’s the fault of both unions and agencies.

Congress also drafted a very comprehensive statute that directs how labor-management relations are supposed to work. The FLRA has now had 42 years to interpret the language of the Statute. And the U.S. Courts of Appeals for every circuit but the Federal Circuit (that Circuit handles MSPB cases and not FLRA cases), and even the U.S. Supreme Court, have contributed to the case law interpreting the Statute.

But the political motivations continue to rear their ugly heads. We all have biases. Some people are more pro-union leaning, and some are more pro-agency. The key is managing the biases and trying just to comply with what Congress directed.

I worked at the FLRA during the Clinton Administration. I feel very fortunate to have worked there under Chair Phyllis Segal. She had this crazy concept: she did not want FLRA decisions to be overturned by the courts. She wanted the FLRA to issue decisions—get this—based upon a careful analysis of the facts, the issues, the Statute, and legal precedent. Lo and behold, when I defended those decisions in the courts (including the Supreme Court), we prevailed most of the time. The courts appreciated the careful analysis of the law by the body entrusted to interpret its own Statute – the FLRA.

Which brings me to a recent court decision. The FLRA issued a decision altering its own precedent regarding the meaning of “conditions of employment” and “working conditions.” DHS, CBP and AFGE, 70 FLRA 501 (2018). The FLRA overturned an arbitrator’s award and issued a decision in the agency’s favor. The union appealed to the U.S. Court of Appeals for the District of Columbia Circuit.  On June 9, 2020, the D.C. Circuit vacated the FLRA’s decision and remanded the case to the FLRA for further review. AFGE v. FLRA, Case No. 19-1069 (D.C. Cir. June 9, 2020).

Here’s the real problem with what the FLRA did in its decision and why the court vacated the decision. The FLRA “failed to explain its departure from precedent.” Id. It looks like the FLRA issued a decision for the agency based more on pro-agency bias than careful legal reasoning. And that’s too bad.

It’s possible the FLRA may have been able to overturn that precedent. But it needed to do so based on careful legal analysis and not a desire to make a pro-agency result.

It’s not just the current FLRA that acted in this way. It’s been done before and will be done again, mostly because of politics and bias. It’s too bad that the cycle continues on.

Maybe future FLRAs will just try to ensure that their decisions comport with statutory construction and legal precedent, and they will focus on how labor-management relations can benefit the taxpayer. Maybe it’s a crazy concept, but I think it can be done. It doesn’t have to be political. It really doesn’t. And if we ever get to that point, it’ll be Good News. Boehm@FELTG.com

No Good News This Month – Just What I Know

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By Ann Boehm, June 17, 2020

I just can’t write Good News this month. There’s too much bad news. Too much happening that doesn’t make sense. Months of dealing with COVID-19, and now George Floyd.

I’m not a good enough writer to express proper thoughts on the George Floyd tragedy. But I do know this: Don’t let bad employees keep their jobs! We teach it. Heck, let’s be honest – we preach it. And yet somehow, bad employees keep their jobs.

My Federal law enforcement friends, now is the time for you to take more seriously than ever issues of misconduct and poor performance by law enforcement officers. There are so many good law enforcement officers. We don’t need the bad ones. They can end up hurting people. They can end up killing people.

And this guidance applies to all Federal employees. Every Federal employee is working on behalf of the American public. You all have important missions. It’s pretty obvious from the news that the American people care a lot about the work of the Department of Health and Human Services, particularly the Centers for Disease Control and Prevention, the Food and Drug Administration, and the National Institutes of Health. It’s easy to dismiss the impact of a weak employee until there is a crisis. If there are bad employees, they can harm the public not just in the United States, but the world.

Is avoiding a personnel lawsuit really worth that? Take the right steps. The law allows (and, in fact, obligates) you to remove poor performers. The law allows you to utilize progressive discipline and remove an employee who continually engages in misconduct. And if a single instance of misconduct is bad enough, you don’t even have to use progressive discipline. Yes, you can fire a Federal employee.

We can help you handle misconduct cases so that you win the lawsuit. We can help you remove the poor performer and win the lawsuit. Where we can’t help you is when the bad officer harms an individual, and the public trust. We can’t help you after the bad scientist misses crucial research data and an opportunity to properly manage a pandemic.

If you lose an MSPB case or EEOC case when you remove a bad apple, then let the media know. Let the MSPB or EEOC defend the decision. But don’t avoid removing a bad employee just because you might lose a case. It will be much worse if the media ends up reporting that an employee who harmed a citizen had multiple instances of misconduct and stayed on the job. Or that the employee who mishandled review of a COVID-19 vaccine was a chronically poor performer.

I would also like to think now is the time for the unions to take a good look at how they address performance and misconduct cases. Of course employees have rights, but a bad employee is a bad employee. Remember that a bargaining unit is made up of many, many good employees, and too often the focus is on the bad ones. Figure out a way to protect good employees without over defending the bad.

So that’s my challenge. It’s a good time to assess performance and misconduct. Do the right thing. Please don’t make the news because of a bad employee. Make the news for doing what your mission requires you to do for the American people. I know you can do it! Boehm@FELTG.com

The Good News: You Can Still Boost Employee Morale Virtually

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By Ann Boehm, May 20, 2020

In this strange COVID-19 world, we are struggling to see the bright side of the situation and trying to avoid the constant barrage of bad news. Actor John Krasinski is providing Some Good News and multiple news outlets are providing Good News updates. Unlike Krasinski, I can’t get the cast of Hamilton to entertain you. Nonetheless, as the oddities of social distancing, telework for all, and virtual meetings continue to drag on, I think it’s important to try to find a bit of good news in the Federal workplace. So here goes.

You can boost employee morale virtually. And you really, really need to try to do so now.

Following last year’s government shutdown, I developed a list of Boosting Employee Morale Do’s and Don’ts for Supervisors. If you’ve attended my training, you have heard them. They’re based mostly on how to avoid being like bad supervisors and more like the good ones. I’ve modified them to fit the current COVID-19 situation.

Don’t be a jerk

I know what you are thinking. I’m not a jerk. But you may not realize behaviors that end up making you seem like a jerk to your employees.

The first thing you need to do to avoid being a jerk to your employees is to honestly assess how you are handling extended isolation and supervising in a teleworking world. Or, if you are not among those teleworking, assess how you are handling the daily stressors and fears you have about your health and safety. Acknowledge your own frustrations and satisfactions. Some people are thriving in the teleworking world – thrilled to be avoiding long commutes and chatty co-workers. Others are missing the workplace and social contact. Different people are handling things differently. Some people are happy to have a job and income; some are very worried about their personal risk. Try to be sensitive to those differences.

Also remember that communication is different in the virtual world. Read your emails carefully to make sure the tone you intend is what is coming through in writing. Understand that your employees may need some assistance with that as well.

Focus on mission requirements and employee performance without getting stuck on bureaucratic 9:00 to 5:30 work hours. Understand that people are dealing with cranky spouses, children, and other family members in their care. If they need to get some work done from 5:00 a.m. to 7:00 a.m., and the rest done from 4:00 p.m. to 10:00 p.m., assess whether that is adversely impacting on your mission or whether it is fine, even if it is different than the norm.

Ultimately, if you stay mission-focused and open-minded, you will avoid being a jerk. And this will boost employee morale.

Do say thank you

Employees may be feeling a bit lost right now, and the best way to give them a sense of belonging is to thank them for continuing to work for the public. Some of you may be supervising essential workers who are not teleworking. Don’t take them for granted. If you send a thank you email to an employee, I can almost guarantee they will share it with some family member or friend. Every employee likes to get praise.

Do include employees in planning

Take the time to look at whether your mission and your employees are matching up. And get employee input on this. Think about those projects you and employees never have time for, and see if this is a good time to get them moving.

Analyze what is working well with teleworking and what is not. Some employees are going to get very used to teleworking. Start thinking now about what is going to happen when the workplace reopens. NASA has a re-entry program for astronauts for a reason. Change is hard. Getting people used to coming into an office will be an adjustment. The best way to create an effective workplace is to plan ahead, to the extent possible, and involve your employees in the planning.

Do talk to employees

Talk to your employees. Yes, really talk to them in some format — call, WebEx, Microsoft Teams, FaceTime, whatever. But talk to them.

I spoke with a friend the other day (an IT guru) who said he was just tired of the sound of Zoom meetings. The beeps when people click in and out. The computer audio. Ask your employees how they are dealing with these kinds of things. It will make them feel better if you just let them talk freely.

Another thing to consider is sending out some sort of weekly or bi-weekly email to your employees that tells them how you are handling the impact of the virus, how you value them, how your organization is staying mission focused, and any other fun information you think they would like to hear. Sometimes employees forget that supervisors are human too. Tell them if you have started a new exercise routine, discovered a great book or Netflix series, learned to play an instrument — you get the idea.

Remind employees that it’s a good time to be a federal employee

This is a new addition to my do’s and don’ts list. Just a year ago, with the government shutdown, federal employment didn’t seem like such a great thing.  But as unemployment skyrockets, federal employees need to be thankful for their jobs. It’s my belief that the desire for federal jobs is going to go through the roof in the next few months. Use this to motivate people. They are now the truly fortunate ones who have jobs. They can be proud of their federal service, even as they may be frustrated with the daily existence in COVID-19 world. In the final analysis, maybe this is the really Good News for now.

Stay strong and stay safe. Boehm@FELTG.com

The Good News: Fed Circuit Case Clarifies Board Review of VA Penalty Decisions

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By Ann Boehm, April 15, 2020

Since the enactment of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (the Act), 38 USC § 714, questions have remained about its application. We’ve always known that Congress intended to improve the performance of the VA by making it easier to remove employees for misconduct and performance through shortened notice periods and a lower burden of proof (substantial evidence) for misconduct cases. But we were not really sure how the Act applied to the agency’s penalty selection.

The Act says, “[I]f the decision of the Secretary is supported by substantial evidence, the administrative judge shall not mitigate the penalty prescribed by the Secretary.” 38 USC § 714(d)(2)(B). “Shall not mitigate the penalty” sounds like – well – shall not mitigate the penalty.  With no Board quorum since the Act’s passage, we have not had any case law to substantiate that interpretation.

Now, we have guidance from the Federal Circuit in Sayers v. DVA, Case No. 18-295 (Fed. Cir. Mar. 31, 2020). In this case, the VA argued that section 714 “limits the Board’s review to only the facts underlying an adverse action.” Id., slip op. at 7. The Court disagreed and ruled the Board has to review the penalty, because removing, suspending, or demoting – i.e., the penalty – is necessarily a part of the decision and the Board is reviewing the Secretary’s decision.

Huh? Yep, clear as mud.

What the Federal Circuit really is saying in this case is that “not mitigating” a penalty is different from Board review of whether a penalty is supported by substantial evidence and reasonable. In pages and pages of legalese, it’s my belief that what the Federal Circuit is really saying in Sayers is this — the VA does not have license to fire anyone it wants to based upon any kind of misconduct. The punishment has to fit the misconduct, and if it does not, the Board can reverse the VA’s decision.

Here’s some key language from the decision that explains the Court’s thinking: “[t]he government’s reading — allowing the agency to remove an employee for the tiniest incident of misconduct so long as the agency could present substantial evidence that the trifling misconduct occurred — could ‘gut due process protections’ in a way Congress did not intend.” Id., slip op. at 10. Congress made it easier to remove VA employees, but did not and could not eliminate their basic due process rights, including the right to appeal to the Board.

So now we know.  But before I leave you, I want to tell you a few more interesting things about this case.

    • Sayers appealed to the Federal Circuit after the Administrative Judge sustained his removal. If an employee does not appeal an AJ decision to the Board, the AJ’s decision becomes the Board’s final order and can be appealed directly to the Federal Circuit. This is how an employee can get a quicker decision on an appeal in the absence of a Board quorum.
    • Interestingly, the Federal Circuit really didn’t have to decide the penalty issue in this case. The primary issue in Sayers was whether section 714 applies retroactively. The misconduct for which the VA fired Sayers occurred before the passage of the Act, and yet the VA applied section 714 to Sayers’s case. The Federal Circuit said that was a no-no – section 714 cannot be applied retroactively.

The court vacated and remanded the Administrative Judge’s decision.  End of story, right? Not exactly. The Federal Circuit still wrote a lengthy opinion on section 714’s penalty language. It did not have to do that.

Why did it do that? I think the answer to that question is buried in a footnote in the decision. The Federal Circuit decided a lot of things in this case that it did not have to because THERE IS NO MSPB. Sayers, slip op. at 5 n.3. It’s a problem. So, they are trying to provide guidance in the absence of a functioning Board.

    • Interestingly, this case has some really good language on why it’s easier to remove an employee for performance than for misconduct. According to the court, the agency has a “unique view on how incompetence impacts the agency,” thus performance is reviewed on a lower burden of proof with no penalty mitigation (except, paradoxically, under the Act, where the burden is the same and there is also no penalty mitigation). Folks, remember that language. The agency knows when an employee’s poor performance is hurting the agency. We say it over and over here at FELTG – take care of poor performers, and trust managers when they say an employee’s performance is harming the mission!

So there you have it. I hope you see some Good News in this decision. We have some clarity. We have some good language on performance. Stay safe out there! Boehm@FELTG.com

The Good News – Investigations are the Fun Part!

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By Ann Boehm, March 19, 2020

Unless you’ve been hiding under a rock for the last 30 years, chances are that at some point you have watched an episode of Law and Order. (And if you haven’t seen an episode, I’m pretty sure there’s one playing on some channel at this very minute.)

To run for three decades, the show must be onto something, and it is. The format. After the crime is discovered, the first half hour is devoted to an investigation by the detectives. The second half focuses on the criminal trial.

Personally, I generally lose interest once the detectives are done. The investigation part is much more interesting than the trial part. (Perhaps becoming an attorney was a bad idea for me.) The investigation part is also the most important.  If the detectives don’t do their job right, the lawyers can’t do their job and convict the bad guys.

This is true in the world of federal misconduct. A good investigation makes all the difference.

So, if a good investigation makes all the difference, why do I so often get blank stares at training sessions when I ask, “Who is responsible for investigating misconduct?” That concerns me. It may indicate a couple of issues: The people who do the investigating are not properly trained (because no one knew they were supposed to be the ones investigating); or, even worse, the agencies aren’t investigating the misconduct properly before disciplining employees.

When I teach our Investigations course, I always emphasize that the point of investigating is to find the facts, not “get” the employee. Employees who allegedly engaged in misconduct should want the matter to be properly investigated.

In my experience, a lack of investigation can result in improper discipline, and a good investigation can clear an innocent person. And of course, a good investigation will support proper disciplinary action so that the agency will prevail in any grievance, arbitration, or EEOC or MSPB litigation.

Here are two anecdotes. I have a friend who was accused of having improper contact with a contractor. She received a letter of reprimand.  No one investigated the alleged misconduct – they just issued the letter. She grieved it and demonstrated she did nothing wrong. It put her through tremendous angst and a lot of effort to clear herself after the issuance of the reprimand. The agency had to spend time considering a grievance and ultimately rescinding the letter of reprimand. A good investigation beforehand would have saved the agency time and effort and the employee stress.

In another instance, I had a friend accused of pretty serious criminal misconduct. Fortunately, the agency conducted a top-notch investigation and quickly determined there was no misconduct. The people making the misconduct allegations were misinformed. The employee was cleared.

The detectives on Law and Order have a harder job than agency misconduct investigators.

First, they have to get enough evidence to meet the criminal burden of proof – beyond a reasonable doubt. The burden of proof for federal administrative cases is preponderance of the evidence or “more likely than not.” The federal administrative investigator also is not bound by the many constitutional restrictions and rules of evidence that often doom the Law and Order investigations.

But investigations must be done, and they must be done correctly.

A note to agencies: Make sure you have policies that address misconduct investigations. Make sure it’s clear who is to conduct those investigations. And make sure the investigators know how to investigate.

Investigations are the fun part. They will either assist the agency with proper discipline or clear a wrongly accused employee. Wouldn’t you rather be Detective Lenny Briscoe than District Attorney Jack McCoy? And if you are Jack McCoy, don’t you want the talents of Lenny to help you get the best information for your case?

Good investigations benefit all! Boehm@FELTG.com 

The Good News – Don’t Worry, Be Jolly

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By Ann Boehm, February 19, 2020

I know, I know. The Bobby McFerrin hit song was “Don’t Worry Be Happy,” not “Don’t Worry Be Jolly.” But I want to provide a way to make you remember one of my favorite Federal Circuit cases in recent years – Jolly v. Department of the Army, 711 F. App’x. 620 (2017).  (And yes, I’m sorry that song will now be in your head for the next three days. It was either this or “Hello, Jolly.”)

Why is Jolly a favorite, you may ask?

Well, for one thing, it says pretty darn clearly that it is NOT a due process violation for a Deciding Official in a discipline matter to know about the employee, the facts of the case, and the employee’s background.

And why is this important? I hear too often from agencies that they won’t let a second-level supervisor serve as the Deciding Official because they “know too much about the case,” and it would be a due process violation. Agencies then rope in some other unsuspecting supervisor from another office to serve as Deciding Official.  According to Jolly, this is not necessary!

Jolly also indicates that agencies may remove federal employees for making threats. I’ve seen people visibly shaken due to fear about employees who make threats, and far too often agencies are afraid to terminate the employee. Jolly says you can. In my opinion, you should!

So, here are the facts in Jolly.

Employee Jolly was a Health Systems Administrator at an Army medical center. During a meeting with a unit chief to discuss concerns about her supervisors and work schedule, employee Jolly asked the chief “if she had heard about the [recent] Camp Lejeune and Fort Hood shootings.” Jolly, 711 F. App’x. at 621. She added that “her supervisor, and Col. Barrow, her second line supervisor, needed to be careful, to leave her alone and not to mess with her.”  Id.

YIKES!

The Army proposed her removal on the very sensible charge of “conduct unbecoming a federal employee,” based upon her “inflammatory and/or menacing comments which reasonably placed fellow employees in fear.” Id.

So, guess what Jolly did? She appealed. She argued her punishment was too harsh. She also argued her due process rights were violated because Col. Barrow — as target of her remarks and Deciding Official — was not impartial. The MSPB Administrative Judge, the MSPB, and the Federal Circuit all agreed that the punishment was appropriate and that there was NO DUE PROCESS violation!!

Here’s some of the lovely language from the Federal Circuit about due process:

“First, ‘[a]t the pre-termination stage, it is not a violation of due process when the proposing and deciding roles are performed by the same person. The law does not presume that a supervisor who proposes to remove an employee is incapable of changing his or her mind upon hearing the employee’s side of the case.’” Id. at 623 (quoting DeSarno v. Dep’t of Commerce, 761 F.2d 657 660 (Fed. Cir. 1985)).

But wait, there’s more:

“Second, the standards of impartiality applicable to post-termination adjudications do not apply in the context of pre-termination hearings. ‘Nothing … limits the deciding official to being a neutral arbiter or requires that the deciding official be unfamiliar with the individual, the facts of the case, or the employee’s prior conduct’ during the pre-termination hearing.” (quoting Norris v. S.E.C., 675 F.3d 1349, 1354 (Fed. Cir. 2012)). Jolly, 711 F. App’x. at 623-24.

And here’s my favorite part:

Relying upon holdings in the Third, Fifth, Sixth, Ninth, and Eleventh Circuits, the Federal Circuit noted:

[u]sually, an employment termination decision is made initially by the employee’s direct supervisor … — a sensible approach given that such person often is already familiar with the employee … Yet, these individuals are also likely targets for claims of bias or improper motive simply because of their positions. . . . [T]o require . . . an impartial pretermination hearing in every instance would as a practical matter require that termination decisions initially be made by an outside party rather than the employer as charges of bias always could be made following an in-house discharge.

Jolly at 624 (quoting McDaniels v. Flick, 59 F.3d 446, 458-60 (3d Cir. 1995)).

Pretty clear, eh? Second-level supervisors can and should be Deciding Officials. End of story. 

And as much as I love the due process analysis in Jolly, I also think it is an important case for the crazy times in which we live.

If an employee is threatening anyone in the workplace, take action. Removal may be appropriate. According to the Federal Circuit, “[w]here an employee makes ‘threats … against her supervisor [that are] unprofessional and inappropriate, and … they adversely affect the work atmosphere,” the penalty of removal is “within the permissible range of reasonableness.” Jolly at p. 6 (quoting Harrison v. Dep’t of Agr., 411 F. App’x 312, 315–16 (Fed. Cir. 2010) (per curiam)).

HR folks and Counsel, when supervisors or employees are scared of an employee due to threats, do not act like there is nothing you can do. Let the supervisor propose removal. And don’t tell second-level supervisors they can’t be Deciding Officials because they know about the case. Of course they do — that’s their job. But now you know it is not a due process violation.

And heck – Don’t worry, be happy!

[Writer’s note: Jolly is “nonprecedential.” According to Federal Rule of Appellate Procedure 32.1(d), a court may “refer to a nonprecedential disposition in an opinion or order and may look to a nonprecedential disposition for guidance or persuasive reasoning.” Also, the Jolly court relies on established precedent in reaching its conclusions. If in doubt, rely on those cases.] Boehm@FELTG.com

The Good News: A Cheat Sheet to Help Overcome the Office of Folklore!

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By Ann Boehm, January 14, 2020

Those of you who attend FELTG training and read our newsletters know that supervisors regularly tell us, “These are great ideas, but our HR staff or counsel won’t let us do this.”  I have come to realize that it is not the fault of the fine folks in HR and counsel offices.

I blame the Office of Folklore (OOF). Yes.  I coined this term. It’s not a real office. But it really exists. The Federal personnel community is a small one, and its insularity results in bad information being circulated as the truth. In our training, we try to defeat OOF, but it’s a formidable opponent driven by a risk-averse culture.

At a recent training, some astute students suggested it would be very helpful to have a “cheat sheet” for supervisors, that would enable them to demonstrate to OOF that they indeed have the authority to properly handle problem employees. (Let me also take this opportunity to remind supervisors, HR staff, and counsel of this important piece of information – HR and counsel are advisors and not decision-makers.  Typically, agency policies state that line managers should make discipline and performance decisions with the advice of HR and counsel.)

So to start off the new decade right, I have created the requested Cheat Sheet, which you will find below. Clip it out and keep it with you. I hope you find this to be helpful. And if you think of anything that I need to add to the cheat sheet, send me an email.  We are here to help.  Boehm@FELTG.com

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FELTG’s Supervisor Cheat Sheet
(How to Overcome the Office of Folklore)

PIPs/DPs should be 30 days long.

E.O. 13839, Section 4(c):  no agency shall “generally afford an employee more than a 30-day period to demonstrate acceptable performance under 4302(c)(6) of title 5, United States Code, before removing an employee for unacceptable performance.”

Melnick v. HUD, 42 MSPR 492, 101 (1989)—30-day PIP is sufficient

You don’t have to “prove” anything to put an employee on a PIP/DP; just articulate failure of a critical element.

“To prevail in an appeal of a performance-based removal under chapter 43, the agency must establish by substantial evidence that: . . . (3) the agency warned the appellant of the inadequacies of her performance during the appraisal period and gave her an adequate opportunity to improve.”  Towne v. Dep’t of the Air Force, 2013 MSPB 81 (2013) (emphasis added).

The rationale for restricting the performance considered in a Chapter 43 action to the period occurring after the date of the notice of deficiency and opportunity to demonstrate acceptable performance is that consideration of earlier performance is ordinarily unnecessary when the employee fails the PIP. If the PIP provided the employee is adequate to fulfill the statutory purpose of affording a meaningful opportunity to demonstrate acceptable performance, then proof that the employee failed to perform at even a minimally acceptable level during that period usually is a sufficient basis for removal or reduction in grade. Evidence of the performance failures which preceded the PIP would therefore not be required.  Brown v. VA and OPM, 44 MSPR 635, 640 (1990).

Performance standards do not have to be lowered for an employee with a disability.

“An employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job. Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation. However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard.” The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities, Section III.A.1, Equal Employment Opportunity Commission Guidance.  

Some acts of misconduct warrant removal for a first offense.

Destruction, mutilation, or theft of a government record by custodian warrants termination (18 USC 2071).

 Both the courts and the Board have held that removal from employment is an appropriate penalty for failure to cooperate with an investigation. Weston v. HUD, 724 F.2d 943 (Fed. Cir. 1983); Negron v. DoJ, 95 MSPR 561 (2004); Sher v. VA, 488 F.3d 489 (1st Cir. 2007) (Courts have repeatedly held that removal from employment is justified for failure to cooperate with an investigation). Hamilton v. DHS, 2012 MSPB 19.

Another 1st offense removal:

    • An employee’s verbal threat to a supervisor warrants removal despite the appellant’s lack of prior discipline and 4 years of service.
    • Such behavior affects the agency’s obligation to maintain a safe work place for its employees, thus impinging upon the efficiency of the service.

Robinson v. USPS, 30 MSPR 678 (1986) aff’d., 809 F.2d 792 (Fed. Cir. 1986)

E.O. 13839, Section 2(b):  “Supervisors and deciding officials should not be required to use progressive discipline.  The penalty for an instance of misconduct should be tailored to the facts and circumstances.”

E.O. 13839, Section 2(d):  “Suspension should not be a substitute for removal in circumstances in which removal would be appropriate.  Agencies should not require suspension of an employee before proposing to remove that employee, except as may be appropriate under applicable facts.”

Different employees may receive different penalties, even for similar misconduct.

E.O. 13839, Section 2(c):  “Each employee’s work performance and disciplinary history is unique, and disciplinary action should be calibrated to the specific facts and circumstances of each individual employee’s situation.  Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time — particularly where the employees are in different work units or chains of supervision — and agencies are not prohibited from removing an employee simply because they did not remove a different employee for comparable conduct.  Nonetheless, employees should be treated equitably, so agencies should consider appropriate comparators as they evaluate potential disciplinary actions.”

A reprimand can be issued without a prior warning.

There is no law that requires warning prior to issuance of a written reprimand. Union contracts may require this, though it’s unlikely.

Any past misconduct counts for progressive discipline—not just the same misconduct.

E.O. 13839, Section 2(e):  “When taking disciplinary action, agencies should have discretion to take into account an employee’s disciplinary record and past work record, including all past misconduct — not only similar past misconduct.”

You can remove an employee for medical inability to perform before a disability retirement is granted.

Not only can an agency remove an employee for medical inability to perform before a disability retirement is granted – a removal on this grounds provides a rebuttable presumption that the employee is entitled to disability retirement.  Bruner v. OPM, 996 F.2d 290 (Fed. Cir. 1993).

The Good News: What Says Happy Holidays More than a Column about Due Process Law?

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By Ann Boehm, December 11, 2019

Throughout my career, I’ve often heard people mistakenly say, “That would be a due process violation.”

When this occurs, I feel like I should respond as Inigo Montoya (rousingly played by Mandy Patinkin) does to Vizzini (Wallace Shawn) in the fabulous movie “The Princess Bride.”  It’s the scene where Vizzini keeps saying, “Inconceivable,” and Inigo finally turns to him and says, “You keep using that word. I do not think it means what you think it means.” That’s how I feel about people who wrongly refer to due process. I do not think it means what you think it means.

Due process is a very simple concept. It’s spelled out in a clause of the Fifth Amendment of the Constitution: “No person shall . . . be deprived of life, liberty, or property, without due process of law.” Starting in 1881 with the assassination of President James Garfield by Charles Guiteau, a man who failed to get a federal job (a bit extreme, don’t you think?), Congress transformed the Federal hiring process from a spoils system to a merit-based civil service.

By 1912, Congress recognized that the system was still imperfect and enacted the Lloyd-La Follette Act.  A key provision of that Act provided that “no person in the classified civil service …  shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing.”

So since 1912, an employee being removed from Federal employment has received notice of the reasons, in writing, and an opportunity to reply.

Decades later, Congress decided to spell out the due process protections for Federal employees in the Civil Service Reform Act of 1978. Due process rights come into play only if pay is taken away from a Federal employee. (Salary is “property” and that is why you do not have due process rights for a letter of reprimand.)

For suspensions of 14 days or less, the due process rights are spelled out in 5 USC § 7503(b): An employee against whom a suspension for 14 days or less is proposed is entitled to: (1) an advance written notice stating the specific reasons for the proposed action; (2) a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor at the earliest practicable date.

Are you still with me? We’re almost home!

For suspensions of 15 days or more, demotions, and removals, the due process rights are spelled out in 5 USC § 7513(b):  An employee against whom an action is proposed is entitled to: (1) at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action; (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor at the earliest practicable date.

This is what due process is, but here is what it is not.

It does not require that you treat all employees the same. I once had an Employee Relations Specialist tell me that, because we granted extensions of time to anyone who requested one, denying anyone would be a due process violation. Um, no, it’s not.

I recently had someone ask if you could settle a case at the proposal stage without violating due process.  Settling at any point is fine – no impact on due process.  Due process is notice, reply, impartial decision.  That’s it.

Folks, don’t complicate things. Due process is simple. Keep it that way!

Federal employees have plenty of rights. Don’t give them more than what Congress intended. And that’s Good News! Boehm@FELTG.com