More Cases Based on Failure to Meet a Condition of Employment

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By Barbara Haga, April 10, 2019

Last month, I began a series of columns regarding failures to meet conditions of employment. There are a wide variety of cases out there on these types of conduct actions with a lot of authority for agencies to hold employees to these requirements. This month, we are focusing on licenses and qualifications.

No ‘Faculties’

Sometimes I learn something new working on these columns. This time it is a new use of the word “faculties.”  In the context of this case, it means a license or authorization from a church authority. Unfortunately for this Chaplain (Catholic priest), GS-0060-12, the one person with authority to give him faculties declined to do so.

Chaplain Ezeh was serving as a priest at Joint Base Anacostia Bolling in the Washington, DC, area and had been there for two years. The Archbishop of the Military Services is the sole endorser of Roman Catholic priests serving the Archdiocese of the Military Services, and by a letter dated December 14, 2011, the Archbishop informed the appellant that he had decided to terminate his faculties effective January 15, 2012.  The case did not include any reasons why the faculties were terminated nor was there any response from Chaplain recounted; however, it was stipulated in the initial decision that without these faculties Chaplain Ezeh could not say mass or administer sacraments. The AJ and the Board sustained the removal

Ezeh v. Navy, 114 FMSR 13 (NP) (Sept. 30, 2013).

Disbarred

De Maio was a GS-13 Estate Tax Attorney for the IRS. He was removed because he failed to meet a condition of employment. He was disbarred as a result of some reported unethical behavior which occurred during some private legal work. The Maryland Court of Appeals referred the complaint to a judge of the circuit court for hearing. DeMaio did not appear for the hearing. The circuit court judge concluded that De Maio had violated the Rules of Professional Conduct as charged. The Attorney Grievance Commission filed a recommendation for sanction, in which it urged the appellant’s disbarment. DeMaio filed a response to the recommendation. On February 17, 2004, by unanimous decision, the Maryland Court of Appeals adopted the recommendation and disbarred the appellant.

DeMaio did not notify the IRS. Instead they learned of the matter about a week later from a member of the private bar and referred the matter for internal investigation by the Treasury Inspector General for Tax Administration. The disbarment was confirmed, and the agency proposed his removal in December 2004. Initially, he argued during his oral reply that the charge of failing to maintain membership in a state bar could not be sustained because he was also admitted to practice before the U.S. District Court for the District of Columbia and was a member of the bar of the District of Columbia. He finally acknowledged, however, that his District of Columbia bar membership had been suspended based on his disbarment in Maryland. The agency subsequently confirmed that he was suspended from practicing by the District of Columbia Court of Appeals pending resolution of the issue of reciprocal discipline. The AJ sustained the removal and the Board declined to review it by decision dated January 4, 2006.

De Maio v. Treasury, PH-0752-05-0394-I-1 (August 18, 2005).

Loss of License to Practice Psychology

Cerwonka is an interesting variation in the line of condition of employment cases because it 1) is a very recent Federal Circuit decision, 2) involves a Title 38 issue, and 3) deals with a situation where there was an appeal of the license revocation ongoing when the removal was effected.

The decision in Cerwonka’s employment case was rendered by the Federal Circuit after the initial decision became final. Cerwonka’s license was revoked by the State of Louisiana in February 2017 because of “clear ethical violations” and repeatedly failing to follow the rules and regulations binding upon him as a psychologist. The decision does not provide any details about the underlying misconduct except that the misconduct arose in conjunction with his private practice.  The proposed removal letter noted that 38 USC.7402(f) provides that a person may not be employed as a psychologist with the VHA if his license has been terminated for cause – which had occurred. The VA removed him on  April 1, 2017.

In July 2017, Cerwonka’s appeal of the decision to revoke his license was decided and a Louisiana district court judge reinstated his license, pending further proceedings. The issuing office appealed the decision to the Louisiana First Circuit Court of Appeal. In an April 2018 decision, that court vacated the lower court’s decision and remanded the matter for further proceedings. At the time of the Federal Circuit’s decision, proceedings on the merits of the license revocation remained pending.

What did the Federal Circuit decide? They sustained the removal, finding that the Title  38 statutory provision took precedence over any Title 5 efficiency of the service arguments. The court noted that 38 USC.7402(f) prohibits the VA from employing any psychologist who had a license terminated for cause, without permitting any additional considerations or affording any discretion.  The decision stated that the VA had interpreted this to mean that the immediate removal of an employee who had a license terminated for cause was required and quoted the VA handbook which stated “[a]n employee who fails to meet or who fails to present evidence of meeting the statutory, e.g., 38 U.S.C. § 7402, or regulatory requirements for appointment will be separated.” 

Cerwonka v. VA, U.S. CAFC, 2018-1398 (Feb. 13, 2019).

Tune in next month for further discussion of conditions of employment tied to medical qualifications.

Cases Based on Failure to Meet a Condition of Employment

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By Barbara Haga, March 13, 2019

In training classes on developing performance plans, I am often asked about putting language into standards that state employees are required to complete training or obtain necessary certifications. My response is that typically those measures are not needed. We write standards from the standpoint that they have the necessary qualifications to perform the assigned work. Put another way, we write performance standards about how well the work is performed; failure to meet such a requirement is a conduct matter.

Back to Basics

Condition of employment cases under 752 are actually fairly simple. If it is a condition of employment that an employee possess, obtain, and/or maintain a license, certification, or membership status, then failure to comply is often the basis for an adverse action. To win these cases, we need to show the following:

  • The employee occupied a job requiring the certificate/license/status,
  • The employee failed to obtain or lost the certificate/license/status, and
  • If the agency controls granting this certificate/license/status, the agency decision was made in accordance with agency procedures.

The Board deals with the facets of such cases in Gallegos v. Department of the Air Force, 114 FMSR 185 (2014). The Board wrote that the charge of failure to meet a condition of employment contains two elements: (1) the requirement at issue is a condition of employment; and (2) the appellant failed to meet that condition. The key point follows: “Absent evidence of bad faith or patent unfairness, the Board defers to the agency’s requirements that must be fulfilled for an individual to qualify for appointment to, or retention in, a particular position.”

Failure to Meet a Condition of Employment

Gallegos was a GS-1811-13 Criminal Investigator with the Air Force’s Office of Special Investigations (OSI). As a condition of employment in that position, she was required to sign a mobility agreement in which she acknowledged that any failure to accept a geographic reassignment could subject her to separation from federal service. The Board found that the Air Force policy had a legitimate management reason for directed reassignments based upon its need for “civilian mobility” as an essential component of its organizational effectiveness and for employee career progression. The agency policy established that high-level employees were expected to have a variety of work experiences at various locations throughout the Air Force. Thus, mobility agreements for all civilian Criminal Investigators were required.

The agency policy included a provision that it would honor employees’ geographic preferences to the extent that the needs of the Air Force permitted, but did not commit itself to honor all such preferences under all circumstances.

Gallegos had initially been hired in Florida, and moved to Andrews Air Force Base in Maryland in 2008. She obtained a hardship reassignment back to Florida in 2009 where she remained until she was notified in May 2012 that she was required to accept assignment at Quantico, VA. She refused that move. She argued that the agency was required to show that her move to Quantico promoted the efficiency of the service. The Board disagreed, ruling that the removal was effected for not meeting a condition of employment (to rotate) and not whether that directed reassignment was based on legitimate management reasons.

Other Kinds of Cases

There is a great variety of certifications, licenses, memberships, qualifications, and clearances that Federal positions require. In each of the cases listed below, the MSPB upheld the removal. Here are some examples:

Failure to Maintain IT Credentials – Change in Requirements

Sasse was an Information Technology (IT) Specialist, GS-2210-09. He was appointed to that position in 2008. The position description required him to satisfactorily complete the appropriate training and obtain the required certification/recertification as outlined in Department of Defense policy, 8570.01-M (“Information Assurance Workforce Improvement Program”). CompTIA is the certifying body for work in this field.

Prior to his initial appointment, Sasse had passed an IT Security examination and as a result was granted a “Good-for-Life” (GFL) certification by CompTIA. However, DoD changed the requirement in 2011. The GFL certifications went away and employees had two years (2011 and 2012) to enroll in a Continuing Education (CE) program. Once enrolled in the CE program, the certificate holder had three years to complete the CE requirements, which meant submitting proof of completing a minimum number of CE units annually to CompTIA. If the employee allowed the certification to expire, then he would have to pass the current version of the examination and comply with CE requirements.

Sasse allowed his certification to expire in 2014.  He was not allowed to perform any duties requiring privileged access between September 2014 through 2016. He performed administrative tasks during this time frame.  He also tried to pass the current security exam several times, but was not successful. He was given nine written notices in the fall of 2016 that he had to regain the CompTIA Security certification. His removal was proposed in January 2017.

Agency officials testified that privileged access enables users to make substantial changes to agency systems, potentially causing them great harm. There also was testimony that if the facility was found to have violated DoD Information Assurance requirements, the facility’s access to the broader network could be disconnected. Sasse argued that, even without his certification, he still had “many other duties and responsibilities that he could complete without maintaining elevated privileges.” The AJ deferred to the agency’s explanation that the requirements that had to be fulfilled. Sasse v. Army, DA-0752-17-0327-I-1 (2017).

Failure to Maintain EMT Credentials – Agency Not Aware of Lapse

Full-performance level Firefighters in the Department of Defense are required to maintain several types of certifications including that of Emergency Medical Technician (EMT), a certification which must be renewed every other year. The certification was documented in the position description and was also included in the vacancy announcement when Saline was hired. Saline’s EMT certification had expired four years before the agency knew. He never notified his employer that this had occurred. It was noted in the decision that because the certification had lapsed for so long, he would have to re-take the EMT course and re-take the examination to be recertified. When it was discovered that he didn’t have current certification, he was questioned on May 24, 2014. He initially told his employer that he had an updated EMT card but that was not true.

Once the Army established that he was performing EMT duties without a current certificate, he was immediately removed from firefighting duties and his removal was proposed on June 25, 2014.

Saline’s removal response was an extended apology for allowing this to occur, stating basically that he allowed it to lapse and that he had no excuse other than that he was not as diligent as he should have been. One of Saline’s arguments in his appeal was the suggestion that management could have discovered the lapsed certification earlier and notified him of the need to take prompt corrective action.

The AJ wrote that regardless of whether management could have discovered the problem earlier, Saline knew he was not certified. Agency witnesses testified that it would be virtually impossible for a Firefighter to forget to re-certify, particularly given the frequency with which it was discussed at work in the Fire Department.  Saline v. Army, DE-0752-14-0567-I-1 (2015).

In future columns, we will look at more condition of employment cases, including several with issues related to failures to meet qualifications based on medical conditions.

Why Not Taking Performance Actions is a Big Deal

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By Barbara Haga, February 13, 2019

I am shaking my head again. I was told by a supervisor in a recent class that one of his supervisors had called the servicing HR office in December about initiating an opportunity period for an employee whose appraisal cycle ends on March 31. He was told that he was too late and couldn’t do one.

I really am at a loss. This is a responsible non-bargaining unit position, the employee was relatively new in that job, although he had been a Federal employee for a few years, and they had a lot of examples of how the employee was not performing at the level necessary.

There is nothing in their appraisal system that sets any limits on when an action could be initiated. It is a mystery to me what would have been necessary to satisfy this HR practitioner that they could and should proceed.

Back to Basics

5 CFR 432.104, entitled “Addressing unacceptable performance,” states:

At any time during the performance appraisal cycle that an employee’s performance is determined to be unacceptable in one or more critical elements, the agency shall notify the employee of the critical element(s) for which performance is unacceptable and inform the employee of the performance requirement(s) or standard(s) that must be attained in order to demonstrate acceptable performance in his or her position.

The first phrase is relevant to this discussion.  The regulation says “at any time” during the cycle. It doesn’t say “at least 90 or 120 days before the end of the cycle” or “by some arbitrary date set by the HR office prior to the end of the cycle” or “the employee has to be warned at the progress review.”  It just says the employee may be notified at any point during the cycle.

I read the regulation in 430 to say that a cycle may be extended if needed in order to prepare a rating (which could include completing a PIP in my book). 5 CFR 430.208(g) states, “When a rating of record cannot be prepared at the time specified, the appraisal period shall be extended.  Once the conditions necessary to complete a rating of record have been met, a rating of record shall be prepared as soon as practicable.”  My take is that a PIP could be initiated on the last day of the cycle.  To me that’s better than giving the employee (and I chose that verb for a reason) a rating they didn’t earn.  It’s a gift that can come back to bite later.

The View from Outside HR and Legal

When HR practitioners advise, sometimes that advice can come back to roost in the future. If you advise managers not to take action or that they can’t take action, sometimes they learn to stop calling you. They may reach the conclusion that the HR or Legal staff is not able to support them (or fill in unwilling, untrained, unmotivated, etc.)

Recent history would seem to tell us that this is the perception across government.  Witness the OMB Directive M-17-22 issued on 04-12-2017 entitled “Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce.”  While many were very excited about the second part of the title, I think there wasn’t much attention paid to the part about reform.  One portion of the directive had to do with performance. Section III, Para D iii directed agencies to “Develop a plan to improve the agency’s ability to maximize employee performance.” Agency responses were due at OMB by June 30, 2017. You can check and see what your agency did with it. The list of required actions included:

  • Review policy, procedures, and guidance on how to address poor performance and conduct.
  • Remove any unnecessary barriers to addressing performance, eliminating steps not required by statute or regulation.
  • Set a date by which all supervisors will be provided a copy of rules and guidance regarding PIPs, including timing of PIPs and use of Chapter 75 procedures.
  • Ensure all managers and HR staff are appropriately trained on managing employee performance and conduct.
  • Establish real-time manager support to assist them in taking needed actions.

If that isn’t a clear signal that the Administration perceives that HR practitioners are not doing what needs to be done, we could turn to Executive Order 13839, which echoed some of the same themes. Even though the two other EOs issued last May were largely enjoined by the DC Circuit decision from last August, very little in 13839 was found invalid.  What did that order direct agencies to do regarding performance actions?  Here’s part of the list:

  • Minimize burden on supervisors.
  • Eliminate pre-demonstration period requirements.
  • Eliminate any requirement to use 432 procedures and use 752 when appropriate.

I read these two documents to say that HR practitioners need to do a better job helping managers hold their employees accountable – whether it is drafting notices in a timely manner, not agreeing to extra steps with unions, or using the right tool for the problem.

If that weren’t enough, the hits just keep coming.  On July 16, 2018 a coalition of the Senior Executives Association, Federal Managers Association, and other manager associations provided input to House Oversight and Government Reform Government Operations Subcommittee on what they thought needed to be done to fix the civil service system.  They had numerous recommendations, including implementing pay banding and merit pay, and also to:

  • Eliminate the statutory requirement that creates Performance Improvement Plans (PIPs), and the really scary one …
  • Provide funding for an online playbook with information on how to handle adverse actions, performance problems, improving employee morale, and other areas supervisors may need guidance.

Why are these manager groups asking for funding for an online tool to help them deal with their employee relations issues?  Could it be that they don’t think they are getting good service from the human beings who presently are supposed to be providing these things?  Could it be that they are tired of being told you can’t do this or that?  Could it be that it takes too long to get the actions prepared?

The Current Case

So, what about the manager who wanted to take action but was told he couldn’t?  The HR office may have thought they dodged an action, but this case is not going away.  As it happens, the manager who asked about initiating the improvement period departed.  A new supervisor is now in place dealing with this employee. I am convinced that this supervisor will persist in getting this person to perform or will take action.

However, the new manager is starting out behind the eight ball.  Because the HR office advised that an action could not be initiated in December, that departing supervisor had to complete a close out rating.  And, because according to HR nothing could be done to take this person to task for the poor performance, that rating was a Fully Successful (their system doesn’t have a Level 2).  Their system makes that close out rating the rating of record when there are not 90 days remaining in the cycle.  So, the EPF is going to include an unearned Fully Successful rating for this year.  The new supervisor will have to confront the inevitable questions if there is an action down the road about why this person was rated FS by the prior supervisor and why this employee’s performance is not good enough anymore.

The bad advice from last fall is going to add extra complication for the manager and HR to resolve this situation down the road if there is a 432 action.  This is sad – and completely unnecessary.

Out of Control

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By Barbara Haga, January 23, 2019

After my last column regarding off-duty misconduct that resulted in removal, I thought it might be worthwhile to look at other cases with related types of situations where, on first glance, it might appear that there were not sufficient grounds to support an adverse action.  There are two that I want to address this month.  Both are about employees who were removed basically because management lost trust in their ability to control themselves if confronted with stressful situations. Both employees were removed for conduct unbecoming.

Unfaithful Husband and Service Revolver

In Mahan v. Treasury, AT-0752-99-0749-I-1 (2001), a GS-13 IRS Criminal Investigator was removed as a result of an incident where she discharged her service revolver in her home. The situation arose when Mahan returned home from a trip and found a “sexually explicit” love letter written to her husband (Horne) by another woman.  She took her government-issued .38 Smith and Wesson from the nightstand as Horne was returning to the house.  She hid the gun in the waistband of her pants.  At that point, she confronted Horne in the kitchen about the letter.  During the ensuing argument, she fired the revolver in the kitchen. Horne agreed to leave (the house was hers prior to their marriage) and walked from the kitchen into the garage. She fired another shot into the floor at the bottom of the steps leading to the garage.  After that she locked the door and called 911.

The police responded, and based on their questioning, they determined that she should be arrested on a charge of assault. The police notified IRS management of the arrest.

The IRS removed Mahan on two charges:

  • Conduct unbecoming an agency employee when she fired two rounds in the general direction of her husband using a government-issued weapon.
  • Failure to properly account for government property (which apparently had something to do with not properly accounting for the service revolver on multiple custody receipts).

The AJ sustained both charges, but mitigated the penalty to a demotion to the highest non-supervisory, non-law-enforcement position she was qualified for. The Board, however, reinstated the removal. 

A Spanking Incident

This case is Doe v. Navy, AT-0752-15-0206-I-1 (2016). Doe was a security specialist at the Naval Air Station in Milton, Fla. He was removed because his 4-year-old son had “extreme” bruising due to an alleged spanking by his father. A household nanny reported the incident to local police and the Florida Department of Children and Families (DCF). Doe was arrested for aggravated child abuse.  DCF conducted a medical exam which documented extreme bruising to the child’s back, buttocks, hamstring and calves.

Doe admitted that he hit the child with a belt during the relevant period because the child had been violent with a teacher. Doe also told the child not to say anything about his injuries, and that instruction to the child was documented in the police report.  There were three charges in the notice:

1) Conduct unbecoming (related to the spanking incident),

2)  Lack of candor (regarding termination with a private company which he omitted from his resume and OF-306), and

3) Failure to follow leave-requesting procedures.

The AJ upheld the first two offenses, but not the third related to the leave procedures.

Even though not all of the charges were sustained, the AJ upheld the removal and the Board affirmed.

Common Themes/Lessons Learned

In both cases, the employees were in responsible positions where they needed to be able to respond appropriately in emergencies. Mahan, as a criminal investigator, was in a position that required knowledge of criminal investigative techniques, rules of criminal procedures, laws, and precedential court decisions concerning the admissibility of evidence, constitutional rights, search and seizure, and related issues in the conduct of investigations. Investigating crimes could be dangerous work, since she was issued a service weapon to use in the course of fulfilling those duties. According to the deciding official’s testimony, Doe’s job required him to ensure that the installation maintained adequate physical security and that Doe would be expected to obtain a weapon from the agency’s armory and repel any attack on the installation. This level of responsibility was important in the discussion of nexus.

In both cases, the deciding official’s testimony about loss of confidence was key.  In Mahan, the DO testified that “the appellant displayed extremely poor judgment in discharging her revolver without provocation or justification.”  In the Doe decision the AJ found that nexus was established because the Doe’s actions caused management to lose faith in his ability to provide a measured response to stressful situations as he completed his central duties of ensuring security. The DO testified that “…the appellant’s misconduct with his son caused him to question the appellant’s ‘composure’ and his ability to control his emotions in connection with his responsibility for protecting people.”

The events that led to the removals involved off-duty criminal actions, arrests, and questions from the appellants about whether the off-duty misconduct met the states’ definitions of the crimes. Mahan raised a self-defense claim in her initial appeal; however, the AJ found that she fired her weapon in anger and to scare her husband into leaving, not that she was in fear that he might do her bodily harm.

In her PFR, Mahan argued that the IRS should have been required to apply the criminal law of the State of Tennessee to her claim of self-defense.  The MSPB stated that she was charged with conduct unbecoming and thus the law of Tennessee was immaterial to that charge.

Doe argued in his PFR that the Navy should have been required to prove the elements of Florida’s aggravated child abuse statute to sustain the conduct unbecoming charge. Doe was arrested, but not criminally prosecuted for his actions. Doe characterized that as the prosecutor not wanting to pursue the case because of scant evidence, but in his testimony,  Doe had said that he agreed to a pre-trial intervention program to resolve the situation because the state was not willing to drop the case otherwise. The Board ruled that he was charged with conduct unbecoming a security specialist, not with the commission of aggravated child abuse or any other criminal offense, and so the charge stood. Both agencies successfully managed to stay out of that quagmire by properly charging the underlying actions and not the arrests/criminal charges, and by making sure that the DOs stuck to the underlying actions and did not raise the arrests/criminal charges in their testimony.

Unlike last month’s case, these are full Board decisions, although Doe is characterized as non-precedential, or in other words it doesn’t tell us anything new.  What is important for practitioners is that the removal charges in both cases were found within the bounds of reasonableness. Mahan had 18 years of service and no prior discipline, yet the Board restored the removal action.  Member Slavet’s concurring opinion in that decision highlighted several considerations about the events related to the shooting, such as it was an emotionally charged domestic incident, no members of the general public were endangered, Mahan alerted the authorities herself, etc. However, despite all of that, Member Slavet stated, “…although I believe the penalty imposed by the agency was harsh, it did not amount of an abuse of the agency’s discretion.”

A Holiday Party, Too Much Alcohol, and Poor Decisions

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By Barbara Haga, November 26, 2018

Holiday parties will be held soon and, inevitably, there will be some bad behavior that goes along with them. It seemed prudent to look at a 2017 case that involved all of the items mentioned in the title and a subsequent removal sustained based on them. It is an interesting case that includes the issue of contact between coworkers, not a supervisor per se, he said/she said explanations of what happened, and the use of a general charge of conduct unbecoming. I’m guessing this one may be in that pile of over a thousand petitions for review, but for now let’s see how the AJ ruled.

The case is Doe v. Air Force, DA-0752-16-0100-I-2 (2017). The appellant asked that the case be processed anonymously, and the agency requested that the names of the witnesses be protected. There are three primary players in the case – Doe, his girlfriend, JD, and the person who reported unwanted sexual contact, KB.

Doe was an Air Traffic Control (ATC) Specialist (Terminal), GS-2152-12, working for the Air Force in Oklahoma. He was a former active duty Air Force ATC. JD and KB were also ATCs, except KB was a military member. JD had worked on the same shift with Doe, but once they started dating, she moved to another shift per management’s direction. Doe and KB worked on the same shift. All three were good friends, as stated in the decision. KB was married, but her husband was out of town during the events recounted in the decision.

The 2014 Holiday Party

The events that led to the removal began with the holiday party at a local restaurant and banquet hall. Doe, JD, and KB sat together at the party. From the decision, it is clear that there was a significant amount of drinking throughout the evening and into the next morning. The party at the commercial facility ended and progressed to an after-party in a co-worker’s barn. Later in the evening, the after-party got out of control and the owner ended the party. The owner specifically asked Doe to get KB out of the after-party because “she was out of control and making everyone uncomfortable.” The owner told him that people reported seeing KB kissing another female airman. Doe acknowledged in a statement in response to the proposed removal that KB lacked judgment because she kissed him and JD on the mouth in front of others at the after-party.

Doe arranged for transportation home from the after-party for himself, JD, and KB. The driver stopped at Doe’s house, and everyone went in and continued to party. For an unexplained reason, KB did not continue on with the driver when he left and instead remained in Doe’s house. JD prepared to go to bed and apparently slept through everything that happened thereafter. KB ended up in the bed with JD and Doe.

What occurred next depends on whose version you find more credible. There was either no sexual contact or unwelcome sexual contact. KB eventually called another coworker and his wife to pick her up and take her home after the incident. She called her husband and told him her version of what had happened and reported the contact to her First Sergeant the next day.

Charge and Specifications

The removal — effective in October 2015 — was based on one charge of conduct unbecoming. The specification read as follows:

On or about December 7, 2014, approximately between the hours of 0100 and 0300 hours, you brought Senior Airman (SrA) KB, a junior enlisted Airman, to whom you provided training and on-duty supervisory oversight, to your home. SrA KB was intoxicated from consuming alcoholic beverages. You initiated unwelcome sexual contact with SrA KB in your bed. To wit: While SrA KB was in your bed you kissed her stomach and vaginal area before digitally penetrating her vagina. DNA evidence confirmed she was in the bed in which you sleep, the same bed in which the unwelcome sexual contact occurred. Because of your actions, SrA KB required premature relocation away from Vance Air Force Base to another Air Force Installation in another state. Your conduct was improper and harmed the efficiency of the service.

Credibility

In this 21-page decision, there are roughly nine pages of discussion regarding credibility. The AJ acknowledged that KB was not the “model” airman, but the AJ found KB’s version of the events more credible than Doe’s. If you want to read a very detailed accounting of the AJ’s view of each version of the events, this is a good analysis.

Doe’s Job Duties

In many agencies, the first reaction to the report of this type of conduct would have been that there was not sufficient nexus between the misconduct and Doe’s position to be able to take an adverse action. Some would view this as being outside the range of actionable misconduct because Doe was not classified as a supervisor and clearly not her supervisor. The events recounted were entirely a matter of off-duty misconduct between coworkers, one civilian and one military. However, the Air Force successfully showed that there was a nexus and that the behavior was unbecoming.

The Air Force policy on personal relationships, “Dress, Appearance, and Relationships,” provided:

4.4. Relationships. While personal relationships between Air Force employees or between Air Force employees and military members are normally matters of individual choice and judgment, they become matters of official concern when they violate existing law or impede the efficiency of the service.

4.4.5. Actions in Response to Unprofessional Relationships. When unprofessional relationships impede the efficiency of the service or adversely affect the mission, appropriate corrective action should be taken IAW AFI 36-704.

The AJ noted that the Board generally recognizes three independent means by which an agency may show a nexus linking an employee’s off-duty misconduct with the efficiency of the service: (1) a rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct; (2) a showing by preponderant evidence that the misconduct affects the employee’s or his co-workers’ job performance, or management’s trust and confidence in the employee’s job performance; and (3) a showing by preponderant evidence that the misconduct interfered with or adversely affected the agency’s mission. (Kruger v. Justice, 87 FMSR 5004 (1987)).

In this case, the AJ found that the record showed that there was impact on Doe’s job performance. While he was not a supervisor in the classification sense and was not in the military chain of command over KB or other military ATC’s, he performed the duties of a senior level ATC, and those duties required a high level of trust and interaction between him and his co-workers. Because of Doe’s level of experience, he was required to occasionally perform the duties of a controller-in-charge. While performing the duties of a controller-in-charge, the appellant was responsible for the entire Radio Approach Control operation. This included monitoring, and intervening if necessary, in the ATC’s handling of air traffic in and around the base. At any given time, there could be as few as one or two ATC’s handling air traffic, or dozens. During his duties as an ATC, and in an ad-hoc supervisory role as the controller-in-charge, he had to perform these critical duties in two-person teams while controlling many flights.

The deciding official testified that “… it was essential that ATCs not have any distractions because of personal conflicts, animosity of others, or any other type of anxiety.” He testified that it is of paramount importance that the ATCs are focused solely on controlling the (air) environment and keeping planes from running into each other. He explained that anything that would result in an ATC doubting his co-workers or his leadership could result in “taking attention away from their responsibility of monitoring the ‘very complex’ puzzle air traffic on their (radar) scope, which could be devastating.”

Lessons from the Decision

Clearly there were a series of poor decisions on both Doe’s and KB’s part in this unfortunate situation. The deciding official’s testimony noted that Doe never took responsibility for his actions, and that led to a conclusion that there was little potential for rehabilitation. In spite of a policy that talked about personal relationships that could become matters of concern, Doe made choices, in the agency’s view, that were inconsistent with his duties as a trainer and controller in charge. That resulted in a loss of confidence in his ability to meet his job’s requirements.

I hope you don’t have any repercussions from any holiday parties attended by employees of your agency this year. Before the party begins, consider this gentle reminder: After the party when the alcohol wears off, the party clothes are put away, and everyone is back in their appointed places, you still have to be able to look each other in the eye and work together – coworkers and supervisors alike!

Carelessness in the Workplace

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By Barbara Haga, November 15, 2017

This month we are branching out from negligence to the larger issue of careless work performance by a Federal employee.

High Voltage 

We’re going to begin with the case of the very scary High Voltage Electrician. The case is Kaminski v. Navy, 56 MSPR 393 (1993).  High voltage basically means enough electrical energy that voltages high enough to inflict harm on living organisms.

The first important consideration in this case is the nature of the work of a High Voltage Electrician.  The OPM Job Grading Standard for WG-2810 describes the work of the High Voltage Electrician as “installing, testing, repairing, and maintaining high voltage electric power-controlling equipment and/or distribution lines. The work requires knowledge of electrical principles, procedures, materials, and safety standards governing electrical systems above 600 volts.”  The standard mentions that the typical work situation for this series is work in substations/power-generating facilities and on electrical distribution lines.  Clearly, the worker in this category is not installing outlets in a building or maintaining wiring on a ship.  This is a higher level of electrical work and the ramifications of mistakes are much more severe.

Careless Workmanship

Kaminski was a High Voltage Electrician at Port Hueneme, California.  He was removed for three charges, the first of which was careless workmanship.  The others were AWOL and failure to follow his supervisor’s orders.  In the initial decision, the AJ sustained all three charges.  The careless workmanship charge was supported by four specifications: (1) While operating a forklift, the appellant negligently severed a valve on a transformer, causing 50-200 gallons of dielectric fluid containing a toxic to spill into the San Diego Bay, (2) he spilled nuts and washers into a transformer that he was repairing, (3) while traveling from one building to another, he lost nine pairs of high voltage rubber gloves, and (4) he filled a diesel truck with unleaded gasoline.

Two of the specifications were sustained.  The agency proved that Kaminski spilled the nuts and bolts into the transformer.  The AJ found that the appellant, as a journeyman Electrician, should have been aware of the serious consequences of spilling small metal objects into a transformer, and sustained that specification.  The Board wrote,

Furthermore, the appellant was employed as a high voltage Electrician, and any mistakes made in such a position could be fatal to both the appellant and his co-workers. In this connection, we note that the appellant’s supervisor testified that the nuts and washers spilled into the transformer could have caused it to explode.

A co-worker testified that he did not want to work with Kaminski because he was afraid “to get killed.” The charge regarding putting the unleaded gasoline in the diesel engine was sustained.  I read about what happens when gasoline goes in a diesel engine.  The minimum requirement is draining the tank if the engine was never turned on. That’s an expensive repair by itself.  If the engine was started and the truck driven, then problems mount up which could result in very expensive engine repairs.

The other two charges were not sustained.  Just to be clear about the significance of the first charge, we would need to know about dielectric fluid. Dielectric fluid is used to prevent or rapidly quench electrical discharges.  It is used in high voltage applications such as transformers, capacitors and high voltage cables to provide electrical insulation and to serve as a coolant.  Dielectric fluids range from mineral oil to benzene.  In Kaminski’s case, the dielectric fluid that spilled into the bay contained a toxin.  But, Kaminski didn’t just spill the fluid, he was charged with hitting the transformer with a forklift which severed the valve and that allowed the dielectric fluid inside to go into the bay.  Unfortunately, the AJ wasn’t convinced that Kaminski was responsible, ruling that the Navy failed to prove by preponderant evidence that Kaminski was responsible for the severing of the transformer valve.

The AJ also did not sustain the charge related to the loss of the nine pairs of high voltage gloves because there were a number of theories, including theft, to explain the disappearance of the gloves from the appellant’s truck.  I checked a vendor of safety and industrial equipment website today and found that they are selling high voltage gloves in $50 to $100 range, although there were some that were over $200.  In 1993 prices let’s say they were worth $50 a piece.  That charge is loss of material worth $450 dollars.  Compared to the other three charges in this case, that one was chicken feed.  I think the agency would have been better off leaving that one out.     

The Penalty

With three charges sustained, but half of the specifications of one of them not sustained, the AJ mitigated the removal to a ten-day suspension.  This took place in spite of the fact that Kaminski had already had a 30-day suspension for misuse of a government vehicle just a few years earlier, during his brief four-year career.  The Board overturned the AJ’s mitigation and reinstated the removal.

Their reasoning is interesting and is helpful for agencies considering misconduct that isn’t worthy of a removal in each instance but where there are several instances of careless work performance.  The Board wrote in the Kaminski decision that the two sustained specifications, spilling the nuts and bolts into the transformer and putting the gasoline in the diesel engine “… indicates that the appellant’s carelessness fits into a pattern of behavior that presents a safety risk to other employees.”   So, several specifications of not following instructions where there are safety concerns attached, or poor decisions that did not take into account agency requirements for completing work, or similar failures or omissions might add together to form a pattern of behavior that would support an adverse action.

[Editor’s Note: Two take-aways from this case. First, although it’s not supposed to, the Board sometimes reaches for mitigation when a number of specifications that are brought are not affirmed on appeal. MSPB’s caselaw establishes that it will independently consider whether mitigation is warranted if one or more CHARGES fail, but not SPECIFICATIONS. Unfortunately, the Board’s judges do not always see a distinction. As Barbara points out, sometimes it’s a good idea to consider reducing your case to the most serious specifications. Secondly, the Board’s decision to overturn its judge’s mitigation reaffirms that it is a rare case indeed in which a removal is mitigated to a suspension if there is a prior suspension in the record. Not always the case, but a good argument for building progressive discipline into a removal.]

Negligence and Federal Employees II

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By Barbara Haga, October 18, 2017

In the last column, I dealt with negligence in medical positions, where perhaps the life and death consequences are somewhat more apparent.  In this column, I will review cases of negligence or careless workmanship in other kinds of positions, including looking at the issue of being “in charge” when things go wrong.

Failing to Complete a Required Records Check

The heading for this case seems innocuous enough, but the consequences of the failure were tragic.  This case also makes another important point – that higher-level officials can be successfully disciplined for failures on the part of their subordinates.  The case is Velez v. Homeland Security, 101 MSPR 650 (2006), aff’d Fed. Cir. 06-3305 (2007).

Velez was disciplined on a charge of negligently performing his duties as a Supervisory Border Patrol Agent, GS-12, in New Mexico.  The following briefly summarizes the events that lead to the discipline.

A subordinate officer (Officer I) working for Velez arrested several illegal aliens and returned to the Border Patrol trailer for processing.  One of those arrested was identified as using another name. One of the names he used was Silerio-Esparza.  Another subordinate officer (Officer II) ran a criminal records check and found that there was an outstanding warrant in Oregon on Silerio-Esparza and there was also a notice to conduct a National Crime Information Center (NCIC) check using the FBI number it provided for the alien.  Officer I followed up with Oregon and determined that they would not extradite Silerio-Esparza; however, the NCIC check was not completed. The supervisor ordered the voluntary release of Silerio-Esparza back to Mexico without having ensured that the additional required check was completed.

The decision notes that within a few months after Silerio-Esparza’s voluntary return to Mexico, he reentered the United States and traveled to Oregon, where he raped two nuns and murdered one of them. The publicity which resulted reflected negatively on the agency and led to an 18-month investigation by the DOJ Inspector General. The OIG’s investigation proved that none of the Agents who processed Silerio-Esparza conducted a FBI NCIC check as required while he was in their custody, and, if they had they would have found that he had a criminal history in the U.S. for thefts, narcotics offenses, robbery, and kidnapping.  He also had two previous deportations from the U.S and a warrant for robbery in Los Angeles. Ostensibly with this information, Silerio-Esparza would not have been released.

The agency’s charge against Velez was negligent performance of his duties in that, contrary to agency policy, he failed to ensure that the Border Patrol Agents who processed Silerio-Esparza had run a FBI NCIC criminal records check on him before Velez granted him a voluntary return to Mexico.  Velez testified that Officer I told him that the records check had been run, but there were no records of radio calls or telephone calls to or from the trailer to request such a check.  Velez acknowledged his awareness of the policy that a FBI NCIC criminal records check must be run whenever a “red-line hit” or “lookout” was obtained from the agency’s criminal information system and of his duty to ensure that the NCIC records check has been run before making any decision on the disposition of an illegal alien.

The judge’s initial decision did not sustain the removal but the Board reinstated it and the Federal Circuit affirmed.  In this case, the supervisor did not have hands-on involvement in the initial situation, but was responsible for ensuring that subordinates acted within the policies established before he took the next step.

Excessive Radiation

This Navy case is an old case but establishes that not complying with safety requirements can still result in a stiff penalty, even if no serious injury actually occurred.  The case, Watkins v. Navy, 29 MSPR 146 (1985), involved a charge of endangering the safety of personnel through carelessness and resulted in a removal by the Agency.  The judge upheld the removal and the Board concurred, but the Federal Circuit reversed the Board’s decision insofar as it upheld the penalty of removal and remanded the case for mitigation of the penalty (Fed. Cir. No. 84-1409 (1985)).  Subsequently, the Board mitigated the penalty.

The facts in the case were that Watkins was charged with exposing himself and a co-worker to excessive radiation in the course of taking x-ray pictures of pipes and fittings on a Navy ship.  While the potential seriousness of the accident was clear, the amount of radiation received was established not to be “medically significant.”  The Board found in reviewing the Douglas factors that the offense was inadvertent and technical and was committed without any intent, malicious or otherwise. It was Watkins’ first offense on an otherwise spotless work and safety record. With regard to the effect of the offense on appellant’s ability to perform, appellant had spent twenty-five years doing this type of work, including five years with the Navy, and the Board found it unlikely that one incident of carelessness would significantly impact his future performance.

Watkins’ supervisor and assistant received only a reprimand and a five-day suspension, respectively, for their involvement in the incident. Watkins was “in charge” of the project at the time of the exposure, so the Board’s decision found that a higher disciplinary penalty than the other two received was appropriate.  However, the Board was not convinced by the agency’s arguments that they had lost confidence in his ability to perform in the future.  The Board wrote that the low penalties handed out to the other employees tended to weaken the Navy’s argument.  Based on this analysis, the Board found the maximum reasonable penalty to be a 60-day suspension.

Although the discipline was more minor in the Watkins case, once again supervisors shared in the responsibility for the failure of the subordinate.  If you will permit me a Shakespearian reference, “Uneasy lies the head that wears the crown” (Henry IV, Part 2, Act 3, scene 1).  Federal supervisors have a right to be uneasy, for they do carry a heavy burden when it comes to the work that their subordinates perform or fail to perform.  [Editor’s Note: Compare Barbara’s cases to those in which the agency could not discipline a supervisor for the failings of subordinates because the supervisor lacked actual knowledge of the misconduct, e.g., Miller v. HHS, 8 MSPR 249 (1981) and Prouty & Weller v. GSA, 2014 MSPB 90.]

Negligence and Federal Employees

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By Barbara Haga, September 13, 2017

Sometimes a particular charge is used in a case that really piques my interest.  Negligence is one of those charges, and this month I am writing about two cases where this charge was used.

Culpable negligence in performance of official duties is a failure to exercise the degree of care required under the particular circumstances, which a person of ordinary prudence in the same situation and with equal experience would not omit.  In reviewing the penalty, it may be determined that a more severe penalty is appropriate if an act of carelessness or negligence results, or could result, in serious injury.

The Drug Box Case

This 2016 initial decision involved a removed employee named Shannon Publicover, who was a Firefighter/Paramedic GS-081-9 at the Marine Corps Base in Quantico, Virginia.  All emergency vehicles at Quantico were outfitted with a drug box that was kept in a temperature controlled part of the vehicle and narcotics that were kept in another location in the vehicle. The events that led to the removal are outlined below.

Publicover reported for her 24-hour shift at 7:00 a.m. as scheduled.  She was assigned to a vehicle that day that responded to six calls beginning with a first call at 7:07 a.m.  It was not until her last call of the day at 6:47 p.m. that she needed to use drugs from the box, which is when she realized that the box on her vehicle could not be used because its seal had been broken.  She reported this to her supervisor at 7:00 p.m.

Publicover explained to the Assistant Chief that she had been too busy during the day to check the drug box, and thus had not discovered it until the end of the shift.  The patient was not harmed because Publicover was able to retrieve a sealed, usable drug box from the fire engine that had accompanied her on the sixth call, and thus had been able to continue treating her patient without undue delay.

The Assistant Chief testified that it was standard practice of Emergency Medical Service providers everywhere to check one’s equipment when coming on duty.  When reporting to work, paramedics were required to insure their gear was ready and to perform vehicle checks.  The check of the equipment took between 45 minutes and an hour to complete.

Publicover agreed that this was standard practice unless “something impaired that action.”  She explained that the first call came in 7:07, so she had to discontinue the checks to respond.

The Assistant Chief agreed that, under the circumstances, she had to go on the call without completing the check and that six calls in a day was a busy day.  However, he also believed that there was ample time in between calls to complete the check. The Assistant Chief reviewed the records of calls and found that her vehicle was not on a call for a total of 5.5 hours.  The ambulance driver on Publicover’s crew that day gave a statement that since their first call came in seven minutes after the shift began, he had to truncate his own equipment check that morning, but he had completed his check later that morning while waiting at the hospital.

Publicover also argued that she was not completely responsible because the drug box had been unsealed and not replaced by the paramedic on the shift before hers.  The Assistant Chief testified that the employee on the prior shift had been “dealt with,” although his testimony did not specify what the penalty was. There was testimony that other individuals who had engaged in similar misconduct had also been disciplined.

The Assistant Chief viewed the failure to check the box before 12 hours into her shift as a serious lapse that could have meant the different between life and death for any of the patients she was called to treat.  That she was able to secure a drug box from another vehicle when she needed medication for the sixth patient was a case of good luck.

Her past record did not help Publicover because it showed that she had five prior short suspensions (none more than three workdays) in her eleven years of employment on charges of failure to follow proper procedures, inappropriate conduct, and negligent performance of duties.

The Administrative Judge (AJ) accepted management’s view of the seriousness of the situation, writing:

The appellant’s failure to complete her equipment check before 12 hours into her shift was a serious lapse that could have meant the difference between life and death for any of the patients she was called to treat. That she did not need the medications in the unusable drug box for five of the six patients she treated on the day in question was just a lucky occurrence. That she was able to secure a drug box from another vehicle when she needed medication for the sixth patient was, again, good luck. I note that even though the delay was slight, there was nevertheless a delay in the care she provided to that sixth patient, since medications were not available on her own vehicle but had to be purloined from another. That kind of delay could have caused death in other circumstances.

The Deciding Official testified that he did not believe the appellant took ownership of her actions because she blamed the incident on the paramedic on the shift before her and never apologized or admitted that her behavior was negligent. This led to his conclusion that there was little potential for her rehabilitation, and he had no confidence in her ability to perform her duties.  The AJ also agreed that the past disciplinary record warranted the next step in progressive discipline and upheld the removal. Publicover v. Navy, DC-0752-15-0003-I-1 (2016) (ID).

The Dirty Instruments Case

The issues of remorse and potential for rehabilitation were dealt with squarely by the MSPB in 1994 in the case of Mack Williams.  Williams was a Medical Supply Technician at the VA, GS-05, who was removed for careless and negligent workmanship on three occasions.  Williams was responsible for placing barrier filters in the lids of containers in which surgical instruments were sterilized, but on three occasions in a very short period of time, he did not correctly perform that function.  The AJ found that the instruments from the containers with improperly installed filters could not be used because they were considered contaminated, and that the errors could have caused surgical patients to become infected, if the errors had not been detected by medical personnel. In one instance, an improperly-sterilized container of surgical instruments was sent into a sterile field in an operating room prior to surgery; when the problem was noticed, the sterile field had to be reestablished, meaning that approximately $1,000 worth of medical supplies that were exposed to the surgical instruments had to be discarded unused, and surgery was delayed by 20 minutes.

The AJ found the errors to be serious breaches, but he found that Williams had shown remorse, that he had good potential for rehabilitation, that he had 22 years of satisfactory federal service, and that his disciplinary record consisted of only a 15-day suspension (the charge was unauthorized removal of government property and took place in 1992). In light of these considerations, the judge concluded that the maximum reasonable penalty under the circumstances was a 120-day suspension.

The Board took a very different view of Williams’ potential for rehabilitation and remorse, writing:

In any event, although an employee’s expression of remorse bears on the determination of an appropriate penalty for deliberate misconduct, whether the employee showed remorse is of little relevance where, as here, an adverse action is based on negligence. That the appellant is quite sorry that surgical instruments were contaminated does little to lessen the possibility of a recurrence of his negligence.

Moreover, we agree with the agency’s contention that there is no evidence to support a finding that the appellant has good potential for rehabilitation. The appellant was counselled about the importance of ensuring the proper placement of barrier filters on sterilization containers after the first incident, and yet, twice within the next 7 weeks, he failed to ensure proper placement of filters.

The Board reinstated the removal.  Williams v. VA, 94 FMSR 5623 (1994), affirmed without opinion (Fed. Cir. October 18, 1995).

Psychiatric Examinations: OPM, the MSPB, and the EEOC

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By Barbara Haga, August 16, 2017

This is the final installment of the review of the case of Ms. Doe, whose employer, the Pension Benefit Guaranty Corporation (PBGC), was concerned about her “unusual and inappropriate behavior.”  As recounted last time, this led to the PBGC sending her for a psychiatric fitness for duty exam which showed that she was not fit.  That determination resulted in an enforced leave action.  She appealed that action to the Board and filed another appeal about AWOL that resulted when she did not submit clarifying medical information to explain how her private physician had found her fit for duty.  After the two MSPB appeals, there was another case filed with the EEOC about whether the agency’s original order, sending her for a fitness for duty evaluation, constituted disability discrimination and/or reprisal.

MSPB Appeal I

Ms. Doe appealed the indefinite suspension action, which placed her in an enforced leave status.  She was on enforced leave for roughly thirty days.  The AJ overturned the action because of the OPM regulations, ruling that the agency didn’t have the authority to order the evaluation on which the suspension action was based.  In that appeal, she raised two affirmative defenses – harmful procedural error and disability discrimination.   The AJ found that she did not prove either of those defenses.

MSPB Appeal II

The second appeal covered the period of time that Ms. Doe was carried in an AWOL status, after she did not give permission for her doctor to talk directly to the agency’s psychologist or report for a psychiatric examination with Dr. Allen.   She appealed the AWOL period as a suspension, and in this appeal, she raised a number of defenses: harmful procedural error, “perceived” disability discrimination, retaliation for prior EEO activity and filing of grievances, and whistleblower reprisal.  The AJ again overturned the action because there was no authority to order the original examination and that since the action was tantamount to a suspension, she did not receive the necessary due process.

The 1984 Change to the OPM Regulations

The Board ruled on the two appeals in Doe v. Pension Benefit Guaranty Corporation, 117 MSPR 579 (2012). The decision includes a lengthy discussion of why the OPM regulations limit the use of ordered psychiatric examinations.  It’s a good history lesson if you are not familiar with the bad old days when agencies had authority to order psychiatric examinations.   I know I was abusing them like crazy.  I think I did three or four in my 20 years or so of working for the Navy – and one of them was almost a duplicate of the Doe situation, except that mine preceded the changes in the regulations.  The Board quotes from the Federal Register notice from January 1984, when the modified regulations were proposed.  OPM wrote, “The Part 339 regulations are explicitly intended to substantially constrain the number of situations where an agency may order an employee to undergo a medical examination.”  The Board’s decision also recounts that there was concern from Congress who had held hearings on the issue of ordered psychiatric FFD examinations, recommending statutory and regulation reforms to eliminate the potential for abuse of psychiatric FFD examinations.  (My emphasis.)

So, OPM’s response was basically to eliminate psychiatric examinations, not to build in procedural protections to deal with potential abuse.  That’s all fine on paper, but what is an agency supposed to do when dealing with someone in Ms. Doe’s situation?  You have someone reporting to work who is engaging in bizarre behavior which is at best distracting others, and you can’t reason with the individual because she is not in touch with reality.  Yes, you could take progressive discipline on the underlying misconduct, but the agency would be trying to handle responses and grievances from an employee the agency has already concluded is not in a position to effectively deal with such matters.

The Board concurred with the AJ on the issue of the ordered examination, stating that the agency could have offered the appellant a psychiatric evaluation pursuant to 5 CFR 339.302, but that they did not have the authority to order it.  The Board also concurred with the AJ that the AWOL could not be sustained.

The Disability Discrimination Issues

MSPB remanded the disability discrimination issues back to the AJ, although there is lengthy discussion about the matter in the portion of the consolidated decision relating to the enforced leave action.  The AJ found on remand that the agency regarded her as disabled, but did not prove that the agency’s actions constituted disability discrimination.  The Board’s 2016 non-precedential decision supported the AJ’s determination.  Doe v. Pension Benefit Guaranty Corporation DC-0752-09-0881-B-2, DC-0752-10-0223-B-2 (2016).

We won’t spend a lot of print on what the MSPB said on this topic, because the EEOC’s decision on this case has been issued. Marya S. v. PBGC, Petition No. 0320160066 (2017).

Did the Ordered Exam Violate the ADA/Rehabilitation Act?

No.  What did the EEOC say on the topic?  That medical examinations and disability-related inquiries may only be made when it is job-related and consistent with business necessity per 29 CFR 1630.13(b), 1630.14(c).  What does that entail?  The employer must have a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform essential job functions will be impaired by a medical condition, or (2) an employee will pose a direct threat due to a medical condition.  What is objective evidence?  Reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will impair her ability to perform essential job functions or will pose a direct threat.  The employer has the burden of showing that the inquiry or exam is job-related and consistent with business-necessity.

The EEOC concurred with the MSPB finding of no unlawful discrimination.  Here’s the paragraph that sums it all up:

Upon review of the record, we find that the Agency lawfully required Petitioner to undergo the Fitness For Duty Exams (FFDEs) because it had a reasonable belief, based on objective evidence, that she would pose a direct threat due to a medical condition. Specifically, the record reflects that, in her February to May 2009 email and in-person interactions with Agency employees, Petitioner accused them of breaking into her home, providing information to a transit officer about her location on a train, orchestrating things to happen to her at work and outside of work, listening to her work conversations, communicating with each other at work via earpieces, observing her at work via hidden cameras, and having a hidden agenda towards her. In addition, the record reflects that, after reviewing those emails, an Agency medical professional determined that Petitioner exhibited paranoid behavior, could be a danger to herself or others, and should undergo a FFDE. Moreover, the record reflects that the Agency relied on that determination in ordering Petitioner to undergo a June 2009 FFDE. Further, the record reflects that the Agency ordered Petitioner to undergo a follow-up FFDE in October 2009 to resolve conflicting information between D2’s June 2009 FFDE report and D3’s September 2009 medical report. Finally, to the extent that Petitioner argues that the Agency’s actions related to the FFDEs constituted harassment on the basis of disability, we decline to make such a finding based on our determination that the FFDEs were lawful.

Where does that leave us?

Knock, knock.  OPM?  Is anybody home? Your 339 regulations prevent agencies from utilizing medical examinations that the EEOC has said are not a violation of the Rehabilitation Act.  We could use some help here.

Psychiatric Examinations, the MSPB, and the EEOC

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By Barbara Haga, July 19, 2017

Last month I began recounting the case of Ms Doe, whose employer the Pension Benefit Guaranty Corporation (PBGC), was concerned about her “unusual and inappropriate behavior.”  We pick up the case with the documentation of the issues with Ms Doe’s behavior and the medical review of that information.  Some of the specifics below come from the subsequent EEOC decision issued earlier this year, Marya S. v. PBGC, EEOC Petition No. 0320160066 (2017).

Documentation

Between February and May 2009. the agency had evidence of multiple exchanges that depicted several instances of behavior that seemed to indicate that there was an issue with her mental status.  These were recorded in e-mails and statements from those who participated in them.  They included the following:

  • Ms Doe sent an e-mail to the Deputy IG claiming her home had been broken into several times since she released information to the IG office. Doe asked if any member of the Deputy IG’s staff had been in her home without her consent.
  • Ms Doe sent an e-mail to her supervisor accusing the supervisor of harassing her and alleging that the supervisor had called a transit officer the previous evening and provided him with the number of the train car in which Ms Doe was riding. She went on to say that “I pray that whatever stronghold has you captive will set you free.” She copied EEO, the CIO, the DCIO, and the OIG on this e-mail.  Ms Doe went on to say that according to the rumor mill the supervisor was trying to get rid of her.
  • In a meeting with her supervisor, Ms Doe accused the supervisor and another official of listening to her conversations and stated that she knew about the “ear piece”. Following the meeting, Ms Doe sent an e-mail to her supervisor in which she said that she hoped the supervisor had presented herself well in front of the hidden camera.

Medical Reviews

After the meeting with the supervisor in May 2009, the supervisor consulted with HR regarding the situation. HR forwarded the information to Federal Occupational Health (FOH) and an FOH physician completed a worksheet indicating he had spoken with HR regarding Ms Doe’s paranoid behavior and would recommend a fitness for duty examination (FFDE).  That physician had contact with Dr. Hibler, a psychologist, who would ultimately conduct the FFDE stating that the real issue was whether Ms Doe was a danger to herself or others.

On May 28, 2009 PBGC ordered Ms Doe to undergo a fitness for duty exam with Dr. Hibler, and placed her on administrative leave pending the results.  Dr. Hibler’s report of the examination stated that Ms Doe was experiencing a psychotic delusional disorder and was unfit.  He recommended that Ms Doe “not be considered for potential return to the workplace until a treating practitioner advises that she is stable and has the resources sufficient to perform her duties.”  He also suggested a follow-up FFDE at that time to objectively determine her emotional status and readiness to perform her duties.

Enforced Leave

Upon receipt of Dr. Hibler’s medical determination, PBGC utilized indefinite suspension procedures to put Ms Doe out of her own sick leave.  The action issued on June 29, 2009 stated that the condition which would end the enforced leave was that she submit documentation from her health care provider confirming that (1) her condition had stabilized, (2) she was no longer a danger to yourself or others in the workplace, and that (3) she was fit to return to work.

Ms Doe replied to the proposal asking for administrative leave for another two to three months so that she could locate a new primary care physician and make an appointment with a psychiatrist.  The agency declined to grant further administrative leave and put her on enforced leave in August 2009.

Medical Clearance to Return to Work

Ms Doe submitted a report in September 2009 from Dr. Schell (a psychiatrist) which stated she “… does not have a history of being a threat to others and is not a present danger to herself or others.  She is able to return [sic] to work without restriction.”  PBGC removed Ms Doe from enforced leave status and placed her on administrative leave pending Dr. Hilber’s review of Dr. Schell’s report.

Dr. Hilber’s letter dated September 14, 2009 regarding his review of the submitted documentation, stated, “Dr. Schell’s report does not contain details and an explanation that would be needed to sufficiently understand [the appellant’s] fitness for her return to work (whether with or without accommodation).”  Dr. Hilber recommended that Ms Doe be reevaluated by an independent medical examination sponsored by PBGC so that the perspectives offered by Dr. Schell are considered by an evaluator of the same professional discipline.

PBGC did as Dr. Hilber suggested and notified Ms Doe that she had two options:  1) to submit medical information that cured the deficiencies in the report Dr. Schell submitted or 2) submit to a follow-up examination with Dr. Hilber and a psychiatric evaluation with Dr. Allen.  Ms Doe chose the first option and submitted a progress note from Dr. Schell. Dr. Hilber reviewed the note and found that it did not address the deficiencies noted earlier.  On October 1, 2009 PBGC ordered Ms Doe to undergo the evaluation with Dr. Hilber on October 8, 2009 and an appointment with Dr. Allen on October 9, 2009.

Ms Doe attended the appointment with Dr. Hilber.  He found that she was still evidencing severe mental illness.  He went on to say that she was “too fragile to be safely returned to the workplace.”  Ms.Doe did not attend the appointment with Dr. Allen.

PBGC followed up with a notice to Ms Doe advising that she had two options, 1) to give consent for Dr. Hilber to consult directly with Dr. Schell to resolve the deficiencies in the medical report and evaluate her for return to work, or 2) undergo the psychiatric evaluation with Dr. Allen.  Ms Doe was given a deadline of November 6, 2009 to advise HR or her choice of option.  She was notified that if she did not elect one of the options and timely notify HR her status would be changed to AWOL.  Ms. Doe did not comply and her status was changed to AWOL beginning on November 9, 2009.

What Came Next?

Ms Doe filed two MSPB appeals, one on the enforced leave action and the second on her placement in AWOL status.  She later filed an appeal with the EEOC of the MSPB decision which found that there was no disability discrimination or retaliation in the PBGC’s actions.  We will review the decisions next time, and return to the issue of the problem with the OPM medical examination regulations.