Standards that Actually Measure Performance – A Look at Whistleblower Protection

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By Barbara Haga, February 19, 2020

Before I talk about requirements related to whistleblower protection and performance plans, I need to talk about the reason behind the Congress’ action in the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. The events leading to the law’s passage are a tragedy, and I don’t think anyone could suggest there shouldn’t have been action to deal with the reprisal that took place. However, agencies would be much better off with a different approach than incorporating it in performance plans.

Dr. Chris Kirkpatrick

Dr. Kirkpatrick was a 38-year old clinical psychologist at the Tomah Veterans Affairs Medical Center in Wisconsin.  According to his obituary, Dr. Kirkpatrick died on July 14, 2009. In a detailed story published by USA Today on April 12, 2015, details are filled in regarding Dr. Kirkpatrick’s employment.

Dr. Kirkpatrick completed his doctorate in clinical psychology in August 2008 and was picked up on two-year appointment a month later. This was a conditional position that could have become permanent if he passed the necessary exams and obtained his license.  Prior to his appointment, Kirkpatrick completed an internship at a VA facility in Chicago where he had worked with patients with PTSD and other conditions.

According to USA Today,  an AFGE rep was present for the meetings with management we are about to discuss. Kirkpatrick received a reprimand in early 2009.  He had raised in a providers’ meeting that his patients were too heavily medicated for them to be properly treated. A physician’s assistant, who was in the meeting and had prescribed some of that medication, reported this to the hospital chief of staff. The reprimand said Dr. Kirkpatrick should not further criticize the PA, should focus on his own work, and should not comment on the use of medications as that was not part of his practice.

Three months later, Dr. Kirkpatrick reported that a veteran had threatened him and his dog. Although a treatment team recommended that the veteran be discharged, that didn’t occur. Kirkpatrick missed two days of work thereafter.  On the third day, he returned to duty. He was fired that morning. The charges included taking leave on Fridays and Mondays, improperly recording a 90-minute absence, and two other minor issues.

After receiving the termination notice, Dr. Kirkpatrick asked the union representative to get a support system so that no one else would have to go through what he did. He went home, and shot himself in the head, and died.

Legislation

Sen. Ron Johnson introduced a bill intended to prevent such situations in the future in March 2017. It easily moved through Congress and was signed on Oct. 26, 2017.

A summary about the legislation posted on govtrack provides further information about the situation at the Tomah Medical Center:

A VA investigation — triggered earlier this year by the revelation that a veteran died at Tomah last August from “mixed drug toxicity” — found Kirkpatrick’s concerns had been warranted. Tomah veterans were 2½ times more likely to get high doses of opiates than the national average. Further investigations found retaliation against whistleblowers has become a major problem at VA facilities across the country. The U.S. Office of Special Counsel is investigating 110 retaliation claims from whistleblowers in 38 states and the District of Columbia.

The bill attempts to stop whistleblower retaliation in several ways; the govtrack summary includes this description:

The bill provides enhanced protections and expedites investigations of instances in which probationary federal employees are fired for whistleblowing; enacts reforms to ensure that managers who retaliate against whistleblowers are held accountable; provides the Office of Special Counsel with adequate access to information from federal agencies to allow for complete investigations and better protect whistleblowers; ensures that all federal employees are informed of their rights as whistleblowers and provides training to managers on protections; and establishes measures to hold VA employees that improperly access the medical records of their fellow VA employees accountable.

The Kirkpatrick Act was included in the NDAA for FY 2018.  It amends provisions in both Chapters 43 and 75.

What’s Wrong?

The change to 5 USC 4302(b)(2) requires agencies to set performance standards that require supervisors to:

  • Respond constructively when employees make disclosures covered under either subparagraph (A) or (B) of 5 USC 2302(b)(8),
  • Take responsible actions to resolve such disclosures, and
  • Foster an environment in which employees feel comfortable making such disclosures to supervisory employees or appropriate authorities.

The suggestion that this should be handled under performance to me shows a lack of understanding of the process.  By the time the superiors of the offending supervisor find out that a supervisor engaged in such behavior, it is likely well after the fact. If you were taking the position that this was unacceptable performance and proceeding under Chapter 43, you would have to do a demonstration period (DP) no matter how long it had been since the act of reprisal. If the supervisor didn’t reprise again during the DP or within one year of the beginning of the DP, there’s no formal performance action.

But let’s look at a more basic issue: What are demonstration periods supposed to be for? To provide assistance on performance to ensure that an employee can come out of the period with the skills to perform successfully. Do you think that those who take reprisal action need to be taught that what they did was wrong? Shouldn’t she know that taking disciplinary action against someone who has pointed out wrongdoing is not tolerated and the manager acts at her peril when she does it?  This is similar to the matter of protecting classified material that I talked about last month; it is a rule that must be followed — and following it is a condition of staying in the job. In this case, reprisal is a prohibited personnel practice that is already illegal.

Another concern is how will a senior manager ever be able to assess this? If there are no disclosures, then it doesn’t apply. If the whistleblower never complains to higher management, they will never know that the manager didn’t respond constructively or take a responsible action.  And how does a senior manager assess whether employees are “comfortable” in making disclosures?

What happened in Dr. Kirkpatrick’s situation is horrible, but the tools to take appropriate action to stop this were already there.  Adding this to appraisals is just form over substance.

How About Standards That Actually Measure Performance?

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By Barbara Haga, January 14, 2020

I’ve looked at quite a few performance plans recently and I keep seeing the same problems showing up. Performance plans full of boilerplate measures that deal with what should be conduct issues, lists of tasks with no discussion of how the quality of that work will be performed, and pages and pages of measures that probably neither the manager nor the employee actually has a grasp of what that means in their daily work.

For the next few columns I am going to focus on what these problems look like and what can be done to fix them.

I wrote about many of these issues when I first started writing for FELTG way back in 2013, but I still see these issues cropping up when I am leading classes on performance.

Putting Conduct Issues into Performance Plans

In many of the situations I am going to  describe, the “blame” for including these falls largely on high-level agency officials and Congress and whomever is advising them!

First, let’s step back a minute. The performance plan is not the document that sets standards of behavior for Federal employees. The performance plan should identify the key aspects of the job and what acceptable performance (and other levels if you write them) looks like. Expectations regarding behavior or conduct standards are set in multiple ways – some things are established by 1) common sense (you can’t murder anyone at work), 2) program folks in the organization (you can use your government computer to do this at lunch and before and after work but not that), 3)  supervisors (if you need to leave the work area, please find me and let me know before you go), 4) agency policies (you must have EMT certification to be a firefighter), and 5) union contracts (you have up to two hours from the start of the shift to call in and request unscheduled leave). If we need to discipline somewhere down the road, the questions will be: Was it a valid rule? Did or should the employee have known about it?

For some reason, however, it seems every time management wants to send a message, agencies start adding required critical elements to cover what should be a conduct expectation. I’ve seen a host of them — everything from protecting classified material to acting ethically and completing yearly IT security training.

Let’s look at these in a little more detail:

Protecting classified material

Here’s an example:

Exhibits individual and personal accountability for classified information under their custody and control by taking precautions to ensure unauthorized persons do not gain access to classified information through proper marking, transmission, and safeguarding; reports unauthorized disclosures, security incidents, violations and vulnerabilities to the appropriate management official and/or security official; completes initial/annual refresher security awareness training,  initial/biennial derivative classifier training and other related security training as required.

Okay, that’s great. But let’s think through this. If an employee intentionally discloses classified material for gain or political reasons, for example, I don’t think there is any doubt that person would end up in jail, so the appraisal would be a moot point. Even if the failure was unintentional, there is likely to be significant action, depending on the sensitivity of what was disclosed. I really don’t think anyone will be writing a demonstration period or improvement notice about it.

The other concern with a standard like this is that it’s essentially a pass/fail measure – the person either follows it or they don’t. That wouldn’t be a problem except that most of you don’t rate elements at two levels. You have something higher than Fully Successful. So how does an employee demonstrate performance above Fully Successful on this? They do a little briefing in a staff meeting, or they write an article for an agency newsletter, or they stand up and swear they REALLY believe? Better yet, I suppose an employee could bring a sleeping bag and spend the night on the floor guarding the classified safe, thereby demonstrating his or her commitment!

Demonstrating Integrity

Employee consistently demonstrates integrity and accountability in achieving Departmental program and management goals.

That statement is part of a benchmark Fully Successful standard for one agency. The accountability part might apply to performance, but it’s kind of like repeating a word in its definition – the whole performance plan is about accountability. If an employee is not demonstrating integrity, they could be providing inaccurate information, hiding information, falsifying documents, and a host of other things that are all likely conduct issues. If an employee truly acts in such a manner, he or she is likely to be the subject of a disciplinary action and not given a warning period to demonstrate that they can behave properly.

Completing required training

There are lots of variations on this one – everything from safety training to IT security training to continuing education requirements. I know from personal experience that a standard on IT security training was used as a hammer to make employees do their annual training because they wouldn’t do it otherwise; they would put it off until the supervisor threatened them with “You’re not going to get the highest rating this year if you don’t do your training on time.” Is that a performance issue? I don’t think so. It would make more sense to me to just order the employees to do it and then follow up appropriately if needed.

But, let’s say the manager wanted to deal with it as a performance matter, so you spend your time writing an opportunity to demonstrate acceptable performance letter. Unless the employee is completely oblivious, he or she would complete the training during the window and now they’ve improved. And, you can repeat it all again next year since there is no record to use to build a more severe action next year.

More importantly, going to training should not be a performance measure for anyone.  We’re talking about a few hours of work in most cases.  A couple of hours out of 2087 in a cycle: Is that critical?  Maybe doing something with what you learned in the training might make sense as a measure. There’s an easy way to see whether any of these elements are used effectively or not. Look through a sample of performance appraisals and see how the supervisors documented performance on them.

Check back next month for more thoughts on performance measures.  And, if you want to attend an in-depth session — from system requirements to within-grades, writing good measures, and taking action on unacceptable performance —  join me for in Washington April 15-16, 2020 for Maximizing Accountability in Performance Management. We will spend two days on everything you need to know about performance.

Cook, McCauley, and Savage: What if AWOL is Involved?

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By Barbara Haga, December 11, 2019

This month we are looking at Cook cases from another angle.  What are the charges when there is AWOL included in the time off?

Here is a scenario that a former class participant inquired about:

In 2018, Employee X was on 154 hours of approved leave. So far in 2019, Employee X was on approved leave 160 hours. In addition, Employee X was AWOL in 2018 for 568 hours and AWOL for 1120 hours during 2019. The absences appear to have been due to medical reasons.  Also, there is a separate issue of failure to follow leave procedures.

The questions posed were:

1 – Can AWOL be counted as part of an excessive absence charge? If not, do we have sufficient absence under approved leave for the excessive absence charge?

2 – At the same time, can and should we have a separate AWOL charge?

Note: There will be another charge of failure to follow leave procedures.

AWOL and Excessive Absence

Remember that in Cook v. Army, 84 FMSR 5013 (1984), the Board cited OPM guidance from the old Federal Personnel Manual (FPM) that provided an exception to the general rule that an adverse action cannot be based on an employee’s use of approved leave, and then set out the Cook factors that we know and love.

The sentence from the FPM shouldn’t be read lightly. The exception is about leave that the agency has approved. Over the years, there were Board decisions that approved the use of excessive absence charges that included AWOL hours. McCauley v. Interior, 116 MSPR 484 (2011) was one of them.

McCauley is an important case because it clarified what kinds of leave could be included in an excessive absence charge. In McCauley, Interior had actually charged the excessive absences and AWOL separately.  However, in its decision, the Board stated, “Because the efficiency of the service may suffer in the absence of an employee’s services, regardless of the type of leave used, we hold that whether the leave is sick leave, annual leave, LWOP, or AWOL will not be dispositive to a charge of excessive absences.” McCauley further clarified that FMLA hours could not be counted in the excessive absence charge since they are protected:

Because Congress’s clear intent when enacting FMLA was to provide job security for individuals who needed to be temporarily absent due to a serious medical condition (whether their own or that of a family member addressed by the FMLA legislation) and the law unambiguously promises this job security, use of FMLA in any calculation to remove an employee is inappropriate. Therefore, it is improper to consider FMLA absences as a part of the equation when evaluating if an employee has taken excessive leave.

Four years later, the case of Savage v. Army, 2015 MSPB 1, resolved the AWOL question. AWOL hours don’t fit under excessive absence charges:

Regarding the 800 hours of AWOL, it has been suggested in dicta that periods of AWOL may be included in a charge of excessive absences. McCauley, 116 MSPR 484, ¶ 10. However, while it is true that AWOL is a type of absence, the Cook holding was based on provisions of the Federal Personnel Manual (FPM) specifically concerned with excessive use of approved leave. See Cook, 18 MSPR at 611-12. Although the FPM was abolished in 1993, the Cook holding has survived for decades since, and we see no grounds for revising it now. Accordingly, to the extent that periods of AWOL are included within a charge of excessive absences, we will not consider those periods under the Cook standard, but instead will consider them as an AWOL charge.

How Much AWOL is Needed to Sustain a Removal?

The second charge in McCauley was AWOL. The agency cited that the employee had been AWOL for 22 consecutive days in 2009.  Assuming an eight-hour workday, that’s 176 hours.

She had also been previously reprimanded for AWOL in November 2008.  Even though the excessive absence charge was not sustained, the removal was sustained on the basis of the AWOL. In Crutchfield v. Department of the Navy, 73 MSPR 444 (1997), a removal was sustained based on 14 days of AWOL.

Many of you who still have tables of penalties might find that such tables identify excessive unauthorized absence as over five days, and the range of remedies often goes up to removal for the first offense. In other words, AWOL is a serious charge and you don’t need a lot of it to show an impact on the efficiency of the service.

How Many Approved Hours are Needed for an Excessive Absence Removal?

The case we often cite on this point is Gartner v Army, 107 FMSR 200 (2007), which I covered two months ago. Gartner was, of course, issued prior to McCauley and Savage. The employee was removed for excessive absence for 252 3/4 hours of LWOP and 80 3/4 hours of AWOL for a total of 333 1/2 hours of unscheduled absences over a period of roughly six months.

Back to Employee X

What would you do with Employee X?

Are there enough hours to support an excessive absence charge – 160 hours over 12 months?  I don’t think that one will stand.  Most employees earn 104 of sick leave and between 104 and 208 of annual a year – even using just what is accrued would be more a lot more than 160.  I think one would be hard pressed to succeed there. But I also don’t think it’s needed.

The AWOL charge is strong — 1120 hours in a 12-month period is nearly 10 times the amount of AWOL that McCauley was removed for. With some good documentation about impact of those absences, it should be easy to make a case for removal on just this charge.

What about failure to follow leave procedures? If the AWOL charge is a result of the employee’s failure to follow leave procedures, then it will likely be merged with the AWOL since they are basically the same misconduct. See Westmoreland v. DVA, 83 MSPR 625 (1999).  So, this one should be skipped as well.

That’s my two cents!

More on Excessive Absence and the Third Cook Factor

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By Barbara Haga, November 13, 2019

Following up on last month’s column, I continue to look at cases which further illustrate use of the Cook exception to remove an employee for excessive approved absence. In last month’s examples, the Army and Air Force were able to produce evidence regarding the problems created by their employees’ absences. This time, we look at cases where agencies didn’t succeed. To recap, Factor 3 is: The agency showed that the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis.

In Walker v. Air Force, 84 FMSR 5882 (1984), the Board overturned the AJ’s decision to uphold Walker’s removal for excessive absence and AWOL. This decision is short and dispenses of the two issues quickly. Regarding the AWOL, the Board held that the Air Force should not have denied LWOP since Walker had already applied for disability retirement and the Air Force instruction in place at the time stated: “Leave without pay is appropriate “[f]or protecting an employee’s status and benefits pending final action by the [Office of Personnel Management] on his claim for disability retirement, after all sick and annual leave have [sic] been exhausted.”

More importantly for our analysis, the Board wrote the following:

The agency was well aware of the appellant’s pending application for disability retirement. Although it indicated, in the notice by which it disapproved the appellant’s request for leave without pay, that its disapproval was based on its belief that the appellant’s position “need[ed] to be filled by an employee who is available for duty on a regular full-time basis,” memorandum from G. Potter to appellant, August 11, 1983, the record shows that the agency had been able to assign the appellant’s duties to other personnel during the ten-month period prior to the disapproval, id. In addition, the agency has not disputed the appellant’s claim that, four and one-half months after the effective date of the removal, the appellant’s position still had not been filled. In view of these circumstances, we find that the agency’s disapproval of the appellant’s request for leave without pay constituted an abuse of discretion.

Unlike Gartner and Zellars reviewed last month, the Air Force, in this case, didn’t identify problems caused by Walker’s absence. The fact that the work was covered by other people and the job remained vacant without evidence of any adverse impact didn’t help the Air Force’s cause.  This concept that there was not a significant enough adverse impact appears in the Miles case discussed below, and, in fact, the Miles decision cites Walker on this point.

The case of Miles v. DVA, CH-0752-14-0374-I-2 (2016)(ID), which is an judge’s initial decision, incorporates the findings from Savage and McCauley regarding counting hours of excessive absence and is a good analysis of what can go wrong under several of the Cook factors.

Miles began his career with VA as a Program Support Clerk and was appointed to the position of Claims Assistant on April 22, 2012. He had a service-connected disability and verbally advised the agency of the disability during the interview for the Claims Assistant position. He requested reasonable accommodations shortly thereafter; his disability included injuries to both hands and wrists, requiring at least 12 surgeries between 2001 and 2013.  The reasonable accommodations included a different keyboard and some other furniture as well as voice-activated software. He was not provided the voice-activated software until roughly one year after his report date. When he did get the software, he reported problems with it and resorted to manual processing to avoid further problems with the hands and wrists, but he was advised that he still had to meet the performance standards for processing cases each day.

Eventually, he needed more surgery and needed to be out six months for recovery and resulting therapy.  Twelve weeks of that absence was covered under FMLA.  Once he recovered from that surgery, he was scheduled to have surgery on the other wrist.  The agency granted some additional LWOP, before taking action under Cook.  The agency’s handling of the balance of the leave for his recovery and the need for his services resulted in this ruling by the AJ:

Further, the undisputed evidence in the record indicates the absence at issue here cannot be described as having had no foreseeable end at the time of removal. The appellant provided the agency with information that the general recovery period for his right wrist replacement was six months, and the agency noted his inability to return for approximately six months in his monthly performance review. IAF-1, Tab 19, Ex. 5; Tab 43, pp. 302-03. I find nothing in the record suggesting the agency had such an urgent need to replace the appellant that it could not wait an additional few months for the appellant to recover fully. It had already granted the appellant over 1,000 hours of leave during the year prior to his removal. Despite the agency’s evidence it is operating at fifty percent staffing levels and is under tremendous internal and external pressure to reduce and eliminate its massive backlog of claims, Ms. Hamilton testified she would have considered granting the appellant additional leave. IAF-1; Tab 42, p. 34; see also, e.g., IAF-1, Tab 19, Ex. 42. Ena Lima, the Service Center Manager, acknowledged during her testimony the agency has remained at the fifty percent staffing level present at the time of the appellant’s employment. See IAF-1, Tab 42, p. 65. Furthermore, even with the reduced staff, the agency appears to have made great strides in reducing the number of pending cases from 15,000 at the time the appellant was working to approximately 8,000 current claims.

Thus, to be successful, agencies need to be able to show some real impacts of the absences – overtime money spent, temporaries or contractors utilized, employees detailed to cover the work of the employee on leave, other employees taken away from their work, deadlines missed that are attributable to the absence of the employee being removed, etc.  As shown above, backlog alone may not be enough.  As to recruitment, agency witnesses should also be ready to address the filling of the position.  Even if it has been a while, which unfortunately is all too common these days, they should be ready to talk about the steps they have taken to initiate recruitment and where they are in the process to ensure that they can establish that some urgency has been attached to the situation.

Excessive Absence and the Third Cook Factor

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By Barbara Haga, October 16, 2019

In several classes recently, I have had questions regarding the Cook factors and what makes one of these cases successful. Just to make sure we are all on the same sheet of music, here is a quick review of what the Board wrote in Cook v. Army, 18 MSPR 610 (1984). The Army challenged the AJ’s determination that Cook should not have been suspended for 40 days as a result of his roughly 1000 hours of approved absence over three years.

In its petition for review, the Army based its argument on guidance in the Federal Personnel Manual where OPM had set out conditions under which action could be taken on approved leave.

FPM Chapter 752, Subchapter 3, paragraph 3-2b(4)(c) provides an exception to the general rule that an adverse action cannot be based on an employee’s use of approved leave. The following three criteria must be met to satisfy the exception:

(1) The record showed that the employee was absent for compelling reasons beyond his or her control so that agency approval or disapproval was immaterial because the employee could not be on the job;

(2) The absence or absences continued beyond a reasonable time and the employee was warned that adverse action might be initiated unless the employee became available for duty on a regular, full-time or part-time basis; and

(3) The agency showed that the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis.

The Army was not successful in getting the decision on Cook overturned, but gave us the decision we still talk about 35 years later regarding excessive absence.

Assuming that your employee missed the requisite amount of time on sick leave, annual leave, or LWOP, and you properly warned the individual that if he/she did not become available for regular attendance at work that action, up to and including removal, could be forthcoming, then you have to talk about the impact of those absences.

In the following cases, the agencies were successful in demonstrating what happened when the employee was absent.

Gartner v. Army, 107 FMSR 200 (MSPB 2007)

Gartner was a GS-4 Medical Support Assistant in the General Surgery Ward at an Army Community Hospital in Fort Stewart, GA. It is important to note that two blocks of hours that the Army had relied upon in removing Gartner were not sustained. She had had prior discipline twice as a result of a period of absence, so those hours were discounted. Also, this decision was issued in 2007 when an agency had to have enough LWOP to take an action, before McCauley v. Interior, 111 FMSR 224 (2011) was issued  – which allowed counting of all approved absences, both paid and unpaid. Gartner’s sick leave hours were not counted to sustain the charge. Thus, in the two Gartner decisions, the period that was accepted to support the charge of excessive absence was 252 3/4 hours of LWOP and 80 3/4 hours of AWOL for a total of 333 1/2 hours of unscheduled absences.

In the initial decision (AT-0752-06-0156-I-1, 2006), the AJ discussed the following:

The appellant works in an Army Hospital where her presence is needed at work to provide much-needed patient care, such as patient check-in, patient care, and appointment scheduling. AR, Tab 4C. Because her absences were unscheduled or of indefinite duration, it made it impossible to hire someone to temporary fill her position. AR, Tab 4C. The appellant presented no evidence to the contrary.

The Board decision quoted further testimony:

When you are not here it places an extreme burden on the rest of our General Surgery/Urology staff whom must then do your job as well as their own job. We are a very busy clinic seeing over 600 patients a month on average.

As a GS-4, Gartner obviously was not running the Urology Clinic, but the Army could talk about 1) other people who provided patient care had to stop what they were doing to cover her duties, and 2) because her absences were intermittent and of an indefinite duration, they could not hire someone to cover those duties. These arguments were sufficient even though only half of the hours included in the original removal notice were actually sustained. The AJ did not question whether 333 hours out of the original 515 hours cited still had such a negative impact on the clinic.

Zellars v Air Force, No. 06-3321 (Fed. Cir. 2006)

Zellars was employed by the Air Force as an Office Assistant, GS-0318-5.  She was removed in 2005 after over 800 hours of LWOP in that leave year and another 817 hours the prior leave year.  Zellars’ job was Secretary for the Maintenance Engineering Section. Her second-line supervisor testified that the section was customer-oriented and the secretary needed to be in the office to answer phones and communicate requests for service, among other things. He added that Zellars’ absence placed an unreasonable burden on other employees because they were then obligated to perform her work in addition to their own. The AJ summarized the information in the Initial Decision (DC-0752-05-0793-I-1, 2006) regarding the third Cook factor as follows:

The agency also has shown that it needed the appellant’s position filled by an employee available for duty on a regular basis and that it had reason under the circumstances to believe that the appellant was unable because of the continuing effects of her various medical ailments to return to duty on a regular basis to fulfill that requirement.

Like in Gartner, the agency did not produce elaborate information to explain why the absence of their clerical support person was a problem, but they were successful before the Board in showing that her services were needed.  The Board (107 FMSR 171) denied the PFR filed by Zellars and the Federal Circuit did not disturb the AJ’s findings.

Next month, we will continue looking at issues that arise in connection with excessive absence cases.

Accommodation and Performance Issues II

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By Barbara Haga, September 18, 2019

Once again, we are looking at handling performance issues in the case of an employee with a disability based on information provided in the EEOC guidance document The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.

Section III.c of the guidance document covers the matters addressed in this column. It is a section about conduct matters, but the examples include performance, too. Sections quoted from the EEOC document are in italics.

10) What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct?

If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.  

If the discipline is something less than termination, the employer may ask about the disability’s relevance to the misconduct, or if the employee thinks there is an accommodation that could help her avoid future misconduct.

We are going to look at the examples in reverse order since they line up with the two options discussed above that way.

Example 20: An employee informs her supervisor that she has been diagnosed with bipolar disorder. A few months later, the supervisor asks to meet with the employee concerning her work on a recent assignment. At the meeting, the supervisor explains that the employee’s work has been generally good, but he provides some constructive criticism. The employee becomes angry, yells at the supervisor, and curses him when the supervisor tells her she cannot leave the meeting until he has finished discussing her work. The company terminates the employee, the same punishment given to any employee who is insubordinate. 

The employee protests her termination, telling the supervisor that her outburst was a result of her bipolar disorder which makes it hard for her to control her temper when she is feeling extreme stress. She says she was trying to get away from the supervisor when she felt she was losing control, but he ordered her not to leave the room. The employee apologizes and requests that the termination be rescinded and that in the future she be allowed to leave the premises if she feels that the stress may cause her to engage in inappropriate behavior. The employer may leave the termination in place without violating the ADA because the employee’s request for reasonable accommodation came after her insubordinate conduct.

This example is important for several reasons. Although it arose in a performance context (the counseling meeting), it is actually a misconduct issue in the Federal context since the action results from the employee yelling and cursing at her supervisor. It reiterates the point that employees with disabilities are expected to meet the same conduct standards as any other employee and allowing such an employee to violate an accepted standard because of a disability is not a reasonable accommodation.

Another reason this example is helpful is it serves as a reminder that managers can require employees to stay put in meetings. My sense from training lots of supervisors is that many of them might not have responded as this supervisor did when the employee tried to leave. I think some might have felt that they could normally require an employee to stay but might have paused this time because this employee had disclosed that there was a disability. As the EEOC described the scenario, the supervisor properly told the employee she had to stay for the discussion of her work.  This is one of the things that you might consider mentioning to a supervisor when you help them with actions and prepare them to deliver the notices. They need to be ready to say, “you have to stay,” when discussing performance matters since sometimes employees, with disabilities and without, will refuse to listen or attempt to walk out when confronted with information about performance deficiencies.

Example 19: Tom, a program director, has successfully controlled most symptoms of his bipolar disorder for a long period, but lately he has had a recurrence of certain symptoms. In the past couple of weeks, he has sometimes talked uncontrollably and his judgment has seemed erratic, leading him to propose projects and deadlines that are unrealistic. At a staff meeting, he becomes angry and disparaging towards a colleague who disagrees with him. Tom’s supervisor tells him after the meeting that his behavior was inappropriate. Tom agrees and reveals for the first time that he has bipolar disorder. He explains that he believes he is experiencing a recurrence of symptoms and says that he will contact his doctor immediately to discuss medical options. The next day Tom provides documentation from his doctor explaining the need to put him on different medication, and stating that it should take no more than six to eight weeks for the medication to eliminate the symptoms. The doctor believes Tom can still continue working, but that it would be helpful for the next couple of months if Tom had more discussions with his supervisor about projects and deadlines so that he could receive feedback to ensure that his goals are realistic. Tom also requests that his supervisor provide clear instructions in writing about work assignments as well as intermediate timetables to help him keep on track.

The supervisor responds that Tom must treat his colleagues with respect and agrees to provide for up to two months all of the reasonable accommodations Tom has requested because they would assist him to continue performing his job without causing an undue hardship.

Tom’s example is a good news story. The disability was disclosed close after the performance deficiencies began, the medical provided the next day, the fix with new medication would only take six to eight weeks, and in the meantime there was a reasonable solution to help Tom successfully perform in the interim. If all goes as planned, management should be able to retain what appears to be a good employee with a successful performance record.

In this case, it appears that the supervisor agreed to the requested accommodation without any discussion about consequences tied to the outburst. If we could roll the clock back: What would have been the answer if the supervisor had wanted to discipline Tom for the outburst? From a discrimination point of view, there is nothing that would prevent the supervisor from doing so since the disability was not disclosed until after the outburst occurred. From a disciplinary standpoint, there is a choice to be made. If the supervisor is satisfied that Tom’s outburst is not likely to recur, then a memo to the record about what happened and noting that Tom was told that this inappropriate behavior wouldn’t be tolerated in the future, might be appropriate. But, if the supervisor wanted to take an action such as a reprimand or short suspension and felt it was warranted given that others who engaged in similar outbursts were similarly disciplined, then it is not out of the realm of reasonableness for that to be the outcome

On the performance side, the supervisor should certainly document what the issues were regarding deadlines and projects. A memo to Tom citing what the problems were and what the supervisor would do in the next weeks to assist Tom in bringing his performance back to an acceptable level would be appropriate. In this example, Tom’s health care provider recommended that the supervisor do the very types of things that might have been suggested as part of a counseling process for Tom.  I would imagine that most of us would stop short of a PIP given that there is an expectation that Tom will return to successful performance in a short period of time.

Accommodation and Performance Issues

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By Barbara Haga, August 14, 2019

The topic of accommodation sometimes arises when an employee is having difficulties meeting the performance requirements of the position, and could also occur when the level of performance has dropped even though it is still acceptable performance. This month, I continue the discussion of these issues as addressed in the EEOC guidance document The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities. 

Section III.a of the guidance document covers the matters addressed in this column.  Sections quoted from the EEOC document are in italics.

Performance at Fully Successful or better.  Question 4 deals with situations where the employee only raises the issue of disability after performance had fallen to a level lower than what had been met previously had been reached. In the Federal workplace, this could be an employee who received a Level 4 Exceeds Fully Successful last cycle, but a Fully Successful this cycle.

4) If an employer gives a lower performance rating to an employee and the employee responds by revealing she has a disability that is causing the performance problem, may the employer still give the lower rating? Yes. The rating reflects the employee’s performance regardless of what role, if any, disability may have played.  

Example 4: Last year Nicole received an “above average” review at her annual performance evaluation. During the current year Nicole had to deal with a number of medical issues concerning her disability. As a result, she was unable to devote the same level of time and effort to her job as she did during the prior year. She did not request reasonable accommodation (i.e., inform the employer that she requires an adjustment or change as a result of a medical condition). The quantity and quality of Nicole’s work were not as high and she received an “average” rating. The supervisor does not have to raise Nicole’s rating even though the decline in performance was related to her disability.

In this example, if Nicole filed a grievance over the rating, the fact that she had difficulty maintaining the level of performance previously assigned because of a physical or mental condition should not affect the outcome. Assuming that the supervisor completed the rating properly and could substantiate the ratings assigned, the performance in this case was judged against the written standard and assessed as meeting those requirements but not exceeding them, so the deciding official should sustain the rating.

If Nicole gave the disability as a reason for the lower performance accomplishment, there should then be a conversation with Nicole about future performance. In the Practical Guidance following Q.4, the EEOC writes: If an employee states that her disability is the cause of the performance problem, the employer could follow up by making clear what level of performance is required and asking why the employee believes the disability is affecting performance. If the employee does not ask for an accommodation (the obligation generally rests with the employee to ask), the employer may ask whether there is an accommodation that may help raise the employee’s performance level.

 Performance at Unacceptable. What if the performance is at a level which would warrant some corrective action has already occurred and the issue of disability arises?  Questions 5 and 6 deal with these scenarios. The basic premise is as follows:

When an employee does not give notice of the need for accommodation until after a performance problem has occurred, reasonable accommodation does not require that the employer:

– tolerate or excuse the poor performance;

– withhold disciplinary action (including termination) warranted by the poor performance;

– raise a performance rating; or

– give an evaluation that does not reflect the employee’s actual performance

If the employee requests accommodation because a disability is interfering with the ability to maintain acceptable performance, two different scenarios could present themselves, whether the request occurred after the opportunity to demonstrate acceptable performance (ODAP) was concluded or was raised prior or during the ODAP.

Post ODAP.  The guidance document provides a private sector example of what would happen when the disability was not raised until after the warnings and corrective procedures had taken place.

Example 9: An employee with a small advertising firm has a learning disability. Because the employee had a bad experience at a prior job when he requested accommodation, he decides not to disclose his disability or ask for any accommodations during the application process or once he begins working. Performance problems soon arise, and the employee’s supervisor brings them to the employee’s attention. He tries to solve the problems on his own, but cannot. The firm follows its policy on counseling and disciplining employees who are failing to meet minimum requirements, but these efforts are unsuccessful. When the supervisor meets with the employee to terminate his employment, the employee asks for a reasonable accommodation.

The employer may refuse the request for reasonable accommodation and proceed with the termination because an employer is not required to excuse performance problems that occurred prior to the accommodation request. Once an employer makes an employee aware of performance problems, the employee must request any accommodations needed to rectify them. This employee waited too long to request reasonable accommodation.

For a Federal employee, this could play out in two ways. One, in a conversation at the conclusion of the PIP advising the employee that he/she was not successful in reaching an acceptable level of performance, the employee raises the disability. The issue of a disability could also be raised in conjunction with a reply to a subsequent proposed adverse action based on the failed ODAP. In neither case would the agency be required to forgive the unacceptable performance as an accommodation.

We’ll continue to explore these performance-related issues next time!

Performance Standards and Reasonable Accommodation

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By Barbara Haga, July 17, 2019

I do a lot of training with managers on performance management and performance appraisal system requirements. That includes discussions of performance failures and how to hold employees accountable. It seems that many don’t have a good grasp of the difference between a reasonable accommodation and an unreasonable one.  When I talk about lowering performance standards not being a reasonable accommodation, they seem to be surprised by that.

The scary part of this is that based on what I see in classes, managers may be doing this informally in many situations without ever raising a question to the appropriate EEO/HR/Legal staff as to whether it is required. If you sampled performance narratives, I think you will find things such as “For this rating period, the employee was not required to meet the standard of 19 widgets a month, but was required to make 12” or “The employee’s assignments were limited to one portion of the process for this rating period,” or “The employee’s assignments included only XXX types of cases for this rating period.” These are all indications that someone is adjusting requirements for some reason. The next step should be talking with the manager to find out what the reason was – and whether a question regarding reasonable accommodation is part of it.

What needs to happen to make sure managers can distinguish between when they are required to accommodate and when they are not? Education would be the obvious answer.  That could include incorporating this kind of information into performance training, or it could be as simple as a short briefing included as part of a staff meeting for managers.

The EEOC’s guidance on applying performance and conduct standards to employees with disabilities is a helpful place to start. It is entitled The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.  The document includes numerous scenarios regarding when accommodation is required that cover private, state and local government, and Federal employees. Kudos to the EEOC for keeping the document updated and posting the date of the last revision.  (Certainly would be nice if OPM adopted that practice for their fact sheets and other guidance documents they have posted, but I digress).

What important points did the EEOC make?  (Section III.a)

1) An employer should apply the same quantitative and qualitative requirements for performance of essential functions to an employee with a disability that it applies to employees without disabilities.

Lowering production standards or eliminating requirements for essential functions is not required as an accommodation.  The point of accommodation is to remedy the situation so that the disabled employee can perform at the same level as any other employees in the job. Eliminating essential functions, of course is not a reasonable accommodation, but taking out marginal functions is a possible accommodation.

The first example provided in the guidance is that of a Federal employee who cannot meet a performance standard:

Example 1: A federal agency requires all of its investigators to complete 30 investigations per year in addition to other responsibilities. Jody’s disability is worsening, causing her increased difficulty in completing 30 investigations while also conducting training and writing articles for a newsletter. Jody tells her supervisor about her disability and requests that she be allowed to eliminate the marginal functions of her job so that she can focus on performing investigations. After determining that conducting trainings and writing articles are marginal functions for Jody and that no undue hardship exists, the agency reassigns Jody’s marginal functions as a reasonable accommodation.

In this example, the agency was able to accommodate the situation because the essential function could be performed at the required level by allowing use of time that would have been spent on the marginal tasks. However, if there wasn’t significant additional time that could be gleaned from other assignments or Jody was not able to complete the number of investigations required for medical reasons, or if those trainings/articles were deemed essential, she would not have been entitled to this accommodation.

The second example covers additional work requirements beyond what the employee is presently required to do. This scenario involves a private sector employee, but I am sure we have all encountered situations where new requirements were added to positions. (Look at the article I wrote in March on conditions of employment related to a computer specialist who had to meet new certification requirements.)

Example 2: Robert is a sales associate for a pharmaceutical company. His territory covers a 3-state region and he must travel to each state three times a year. Due to staff cutbacks, the company is increasing the number of states for each salesperson from three to five. Robert explains to his manager that due to his disability he cannot handle the extra two states and the increased traveling, and he asks that he be allowed to have responsibility only for his original three states. The company may refuse this request for accommodation because it conflicts with the new production standard. However, the company should explore with Robert whether there is any reasonable accommodation that could enable him to service five states, and if not, whether reassignment is possible.

I think many managers might feel in this situation that it would be a legitimate decision not to require Robert to perform over the same area as other employees because of his disability, when the answer is actually quite different.

The third example involves a computer specialist and a PIP.

Example 3: A computer programmer with a known disability has missed deadlines for projects, necessitating that other employees finish his work. Further, the employee has not kept abreast of changes in the database package, causing him to misinterpret as system problems changes that he should have known about. The employee is placed on a Performance Improvement Plan, but his performance does not improve and he is terminated. At no time does the employee request a reasonable accommodation (i.e., inform the employer that he requires an adjustment or change as a result of a medical condition). The termination is justified as long as the employer holds the employee to the same performance standards as other programmers.

In this example, management took the appropriate step to place the employee in the demonstration period because the work was not being accomplished at the required level, even though they knew the employee had a disability. I believe that there are likely many situations where management would accept the less than acceptable work because they felt they had no alternative but to do so.

The current administration has sent lots of signals about the need for accountability in performance management.  Based on what I have seen, this is an area where managers need some help to ensure that accountability is maintained appropriately.

Security Clearances as Conditions of Employment

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By Barbara Haga, June 17, 2019

This month we are looking at what I would describe as the “King of Condition of Employment Cases.” In Egan v. Navy, 484 U.S. 518 (1998), the Supreme Court answered the question of what type of review would apply when the condition of employment involved a security clearance. Anyone who deals with security clearance issues should read this foundational case, if they haven’t yet.

Egan was hired in 1981 as a Laborer at the Trident Refit Facility in Bremerton, Wash., where all positions were deemed sensitive. His appointment was documented as subject to satisfactory completion of security and medical reports. During the interim between his date of hire and the date of the decision on his security clearance, Egan performed limited duty and was not allowed on board any submarines. Upon completion of the requisite inquiry into his background, the Navy proposed his removal based on several factors. First, it was noted that criminal records from California and Washington state reflected that he had been convicted for assault and for being a felon in possession of a firearm. It was also shown that he had failed to disclose on his employment application that he had two earlier convictions for carrying a loaded firearm.  Finally, he had admitted that he had had prior drinking problems and at one point had completed the final 28 days of one of his sentences in an alcohol rehab program.

The Navy completed the next required step in the clearance denial process and provided him an intent to revoke notice. Egan replied that his debt to society for his past convictions had been paid. He also stated that he had not listed convictions older than seven years because he did not interpret the employment form as requiring that information, and that he had not had an alcohol problem for the three years preceding the clearance determination. He also provided favorable references from his supervisors regarding his background and character.

Despite the rebuttal information Egan submitted, the Navy denied his clearance. He exercised his clearance appeal within the Navy. The answer regarding the clearance was not modified. In 1983, the Navy removed Egan since he was not eligible for the job for which he had been hired.

In the initial decision, the AJ reversed the removal ruling that the Board had the authority to review the merits of an agency’s security clearance decision, including that the “… agency must specify the precise criteria used in its security-clearance decision and must show that those criteria are rationally related to national security.”  The AJ held that “… the ultimate burden was upon the agency to persuade the Board of the appropriateness of its decision to deny clearance.”    

The agency petitioned for review and the Board overturned the AJ’s decision. Egan then took the matter to the Federal Circuit where in a divided vote, that court reversed the Board’s decision. In the Federal Circuit decision, the Court explained that because the removal was taken under 5 USC 7512 rather than 5 USC 7532, the Board’s role of deciding the merits of the removal were not limited.  The government took the case to the Supreme Court.  The case was decided as summarized here:

The Majority of the Supreme Court, in a 5 to 3 decision, decided that a denial of a security clearance is not an adverse action and therefore not subject to Board review under 5 USC 7512 and 7513. The Board may only decide whether cause for denial existed, whether the security clearance was denied, and whether transfer to a nonsensitive position was feasible. It may not review the agency’s decision to deny a clearance on the merits. The Executive Branch is by law authorized to make judgments with regard to national security matters. This authority has been delegated to heads of agencies. “Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction [with regard to an individual’s possible future behavior] with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk.” The agency head is to have the final say as to whether an individual will be given access to classified information.

Thus, for security clearance denials and revocations, the required proof is that the agency observed the necessary due process in handling of the clearance and in carrying out any subsequent adverse action. Given that, one would think that these were not complex cases and almost impossible to mess up. However, as you’ll see, it is possible to lose one.

Everything that Could Go Wrong

Gamboa v. Air Force, 2014 MSPB 13, provides a checklist of what not to do. Gamboa was moved from the position of Electronics Technician to the position of GS-6, Supply Technician in 2005. It is an unusual change in positions, since one would expect that the Engineering Technician would have higher grade potential that the Supply Clerk, but nothing is provided in the decision to explain the move. The personnel action did not indicate that the new position required a clearance, although it was designated as non-critical sensitive. Unfortunately, neither the position description nor the vacancy announcement included than the position required access to classified information. The decision reflects that there was no affidavit from an agency official or a policy that established that the job required a clearance.

More troubling was the fact that Gamboa’s access to classified material was suspended in early 2007 yet the removal was not effected until December 2010.  The agency claimed that the duties requiring any handling of classified material were given to other employees who had clearance, but the Board was not convinced, writing , “… it is unclear how or why the agency maintained this alleged arrangement for nearly 4 years if eligibility for access and/or actual access to classified information was a requirement of the appellant’s position.”  The Board overturned the removal, holding that the Air Force had not established that there was a condition of employment which Gamboa failed to meet. In other words, the agency’s actions undermined the argument that a security clearance was required, and Gamboa came back to work.

Failure to Meet a Medical-related Condition of Employment

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By Barbara Haga, May 15, 2019

This month, we look at cases where the condition needed to be met involves some sort of physical capability. Because the employees in these cases had previously performed at a fully successful or better level or the medical showed that they could perform at a fully successful level in the future, one might think there could be an issue in holding the employee to the medical standard. However, the MSPB and EEOC ruled otherwise in these situations.

Medically Unfit for Flying

Boulineau was a 51-year old GS-12 Army Helicopter Flight Instructor. His position had established medical standards. He was required to undergo annual flight examinations. During an examination conducted in 1989, it was discovered that he had an elevated coronary risk index. He underwent additional testing, including a treadmill test and a fluoroscopy. The latter test revealed a mild calcification of his coronary area. To confirm the existence of coronary artery disease, which was disqualifying for the appellant’s position, the Army asked that he undergo cardiac catheterization. Boulineau refused to do so and was removed consistent with the relevant Army Regulation (AR) 40-501.

Boulineau argued that the testing and evaluation program violated not only the Army regulation, but his civil rights. The Board found that AR 40-501 provided that a person is medically unfit for flying if he has suspected or proven to have coronary artery disease, and that a coronary risk index is presumptive evidence of such disease until further evaluation is done as needed. The Board also found that although Boulineau had performed his duties in an exemplary manner in the past, the Army reasonably suspected that he had coronary artery disease and that he was, therefore, medically unfit for flying. The Board did not concur that Boulineau’s civil rights had been violated and noted that medical examinations of the type in question were authorized by OPM. Boulineau v. Army, 57 MSPR 244 (1993).

Boulineau alleged age discrimination and that issue was ruled on by the EEOC in 1994.  Per the EEOC’s analysis, the reason for his removal was that he refused the heart catheterization procedure — not his age. Therefore, they did not find discrimination. Boulineau v. Dept of the Army, 1994 EEOPUB LEXIS 565.

Failure to Meet New Hearing Qualification

McAlexander was originally hired as a Police Officer in January 2002 by the Defense Protective Service (DPS). In response to the terrorist attack against the Pentagon on 9/11, DoD established the Pentagon Force Protection Agency. The new agency absorbed the Pentagon’s police force, formerly known as DPS, and its role of providing basic law enforcement and security for Pentagon and DoD interests in the National Capitol Region.

McAlexander had had no issues with qualifications prior to implementation of the new requirements. However, when he was tested subsequent to issuance of the new standards, he was found not qualified to hold the Police Office position.  According to the agency’s audiologist, McAlexander was “at risk for failure to recognize, discriminate, localize, and react appropriately to a variety of auditory stimuli.” The audiologist also found that the appellant would have “significant difficulty recognizing and discriminating speech as well as other auditory signals, particularly in the presence of background noise,” and stated further that he would be at a “greater than normal risk of being injured or of injuring others because of background noises he had missed or misunderstood in critical situations.” The audiologist stated that there were no hearing aids that could satisfactorily correct his hearing deficit.

DoD proposed removal, but offered another position. McAlexander was ultimately reassigned to a non-law enforcement position as a GS-07 Office Support Assistant, with retained pay, and the removal notice was rescinded.  The case was taken to arbitration where the agency’s action was upheld. The arbitrator found that the agency acted lawfully when it declined to waive its hearing requirement for McAlexander. The MSPB appeal was a request of a review of the arbitrator’s award and a claim that the reassignment was involuntary. The MSPB found that the agency’s auditory acuity qualification standard was job-related and consistent with business necessity and that McAlexander would pose a direct threat because of his lack of hearing acuity.  The Board also ruled that acceptance of the offered reassignment was not involuntary. McAlexander v. DoD, 2007 MSPB 103.

See also Holub v. Navy, PH-0752-03-0395-I-1, which has the same result for another Police Officer who failed to meet revised hearing acuity requirements.

Failure to Meet Requirements for Sea Duty Because of Prescribed Medication

Justice was a Utilityman in the civilian mariner pool with the Navy’s Military Sealift Command. This position required going to sea. Justice had previously experienced psychiatric and alcohol-related problems while on board a vessel. As a result, he was repatriated back to the U.S. for treatment.  He was diagnosed with Bipolar Affective Disorder. This condition was treatable with medication. Justice provided information from two treating physicians stating that he was being successfully treated with Depakote, a psychotropic drug. It was also noted that he would have to take this drug indefinitely, but he could resume his regular duties as long as he continued to take Depakote.

The agency medical officer found Justice disqualified for sea duty. He was removed, and he appealed that removal to the Board. The agency medical officer testified that she considered Bipolar Affective Disorder a disqualifying condition in itself under the agency regulations, and that the continued use of Depakote was a separate disqualifying factor under the agency regulations.  The agency medical officer stated “Depakote is a medication that requires some routine monitoring of blood levels to determine whether it’s a therapeutic level” and also noted that individuals taking psychotropic drugs are disqualified from sea duty because of the uncertainty such drugs present in terms of their effect on individuals who take them or who fail to take them, and because they could have some “rather significant side effects pertaining to alertness and judgment.” The medical officer also testified that the type of ships that Justice would be assigned to did not have the medical facilities to test the amounts of the drug in his system as would be required. She also noted that in a situation where the individual stopped complying with the medication, incidents requiring repatriation could occur again which could interrupt the mission of the ship, which could interrupt the mission of a battle group. The Board sustained the removal, although they overturned the construction suspension for the period prior to his removal. Justice v. Navy, 89 MSPR 379 (2001).

Next month we’ll look at cases involving security clearances and sensitivity determinations.

See the first part of Barbara’s series on Conditions of Employment here and the second part here.