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How is Kirkpatrick Act Discipline Different from Traditional Discipline?

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By Deborah Hopkins, June 7, 2021

Last week, the MSPB released a research brief Agency Leader Responsibilities Related to Prohibited Personnel Practices. Since the MSPB still doesn’t have a quorum (1,613 days and over 3,400 Petitions For Review – and counting), publishing research briefs is one function the Board is still able to complete.

This brief looks at specifics in the Dr. Chris Kirkpatrick Whistleblower Protection Act (Kirkpatrick Act), 5 U.S.C. § 7515, which was passed unanimously by the Senate in 2017. The Kirkpatrick Act was named after a VA doctor who reported patient abuse and issues with patient medications (opioids) at the VA Medical Center where he was newly employed. Dr. Kirkpatrick made allegations that he was reprised against for being a whistleblower, and died by suicide shortly after he was removed from his position.

In case you’re not familiar, the Kirkpatrick Act sets out specific requirements for discipline against management officials who reprise against whistleblowers and other employees, specifically limited to the 5 U.S.C. § 2302(b) Prohibited Personnel Practices (PPP) 8, 9, and 14:

  • PPP 8 addresses retaliating or threatening to retaliate against a whistleblower.
  • PPP 9 addresses retaliating or threatening to retaliate against a person who exercises his/her/their right to participate in an appeal, complaint, or grievance (including as a witness), and retaliating or threatening to retaliate against an employee who refuses to obey an order that would require an individual to violate a law, rule, or regulation.
  • PPP 14 involves accessing the medical record of an employee or applicant as part of the commission of any other PPP.

If there is a finding of what MSPB in its brief refers to as a “Kirkpatrick PPP,” then specific requirements must be met in proposing discipline. We’ll discuss those below.

But first, according to the report, while “[t]he Kirkpatrick Act does not state what constitutes a determination that a Kirkpatrick PPP was committed or how to determine who committed the PPP in question,” the finding of a Kirkpatrick PPP can only be made by:

  • The head of the agency employing the supervisor;
  • An administrative law judge;
  • The MSPB;
  • The U.S. Office of Special Counsel (OSC);
  • A judge of the United States;
  • The Inspector General (IG) of the agency.

This seems to exclude the findings of a standard misconduct investigation unless, of course, the agency head reads the ROI and decides reprisal has occurred. Once the reprisal finding is made, the Kirkpatrick Act details the following process:

The head of the agency shall:

  1. Propose a suspension of at least three days (for a first offense), or propose removal (for a second offense by the same supervisor).
  2. Provide the employee 14 days to respond to the proposal, and allow the employee to be represented and to review the material relied upon; and
  3. Exercise judgment when considering the employee’s response and deciding to implement the proposed action, with the decision due by the end of the 15th business day (5 CFR § 752.103; this timeline may be amended in the future as a result of Executive Order 14003.)

There’s another interesting caveat to the Kirkpatrick Act. It only applies to actions taken against supervisors, as defined by 5 U.S.C. § 7103(a). If you have a few minutes to look it over, the brief can be found here. It includes a nice side-by-side chart comparing Traditional Discipline with Kirkpatrick Discipline. The brief also details various training on PPPs that agencies must require (including supervisor training on Kirkpatrick discipline), so please let us know if you’d like us to help you out there. After all, it’s what we do. Hopkins@FELTG.com.

Three Takeaways from the 2020 FEVS

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By Deborah Hopkins, May 24, 2021

The 2020 FEVS was released a few days ago. Thanks to COVID-19, it looks somewhat different than past FEVS. But, as always, it is full of interesting and helpful information about how employees view their agencies, their supervisors, their coworkers, and more. Below are three key takeaways.

1. Agencies still have a long way to go on performance accountability.

In the 2020 FEVS, one of the worst scores out of all the topics covered came as a result of this item: In my work unit, steps are taken to deal with a poor performer who cannot or will not improve. (Q. 10). Only 42 percent of employees agreed with this statement, which means 58 percent of employees think that supervisors don’t do enough to hold unacceptable performers accountable. Not great.

While this number is trending better than it has in recent years (it was 36 percent in 2019 and 28 percent in 2018), we can all agree that 42 percent is not the target any agency aims for. That’s a failing grade no matter how you look at it.

FELTG has been working with a few agencies on a targeted approach to increase performance accountability through a structured set of training on topics, including writing effective performance standards, providing feedback that makes a difference, and holding employees accountable. These agencies have seen their individual FEVS scores on this item increase significantly, which tells us that the good employees really appreciate when supervisors focus time and effort on employee performance matters.

2. The grade on diversity hiring and representation is a solid C+.

In response to this item: My supervisor is committed to a workforce representative of all segments of society (Q. 20), 79% of employees agreed.

With President Biden’s numerous Executive Orders highlighting the government’s role in promoting diversity, especially among traditionally underserved populations, we can anticipate that agencies will work on bringing this number up in 2021. In many agencies, leadership is especially focused on nondiscriminatory hiring, reasonable accommodation for employees with disabilities, raising awareness about LGBTQ issues, and training on types of microaggressions and bias that often lead to hostile work environment allegations.

3. COVID-19 definitely impacted agency performance, but not as much as you might think.

One of the new sections in the FEVS dealt with the impacts of COVID-19 on agencies’ ability to meet customer needs and focus on mission results while the world was turned upside down from the pandemic. The graphic below shows that while there have been some struggles, Federal employees have found ways to contribute to agency mission and customer service despite unprecedented working conditions, whether that was transitioning to work 100% from home, spending 12 hour shifts in PPE, working around the clock to develop tests, treatments, or vaccines, and much more.

If you haven’t yet read the FEVS, you can find it on OPM’s website here. It’s worth a look, and when you’re ready to talk to FELTG about how we can help you improve your agency’s scores (because after all, higher scores mean your employees are happier, and if your employees are happier they are more productive), we’ll be here. Hopkins@FELTG.com

 

What You Should Know About SES Discipline

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By Deborah Hopkins, May 21, 2021

While it’s rare to see an individual in the Senior Executive Service (SES) receive disciplinary action, every now and then an SES breaks bad, and agencies respond accordingly. During a recent UnCivil Servant training class [Editor’s note: Don’t miss our next UnCivil Servant open enrollment class September 8-9], we received a number of questions about the process of disciplining a career SES, so I thought I’d share an overview with the FELTG Nation. As you’ll see there are some similarities between SES and non SES discipline – and a few significant differences.

An agency may take disciplinary action against a career SES member (covered by subchapter V of chapter 75 of title 5 of the U.S. Code) only for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.

Unlike unacceptable performance cases, which rather than removal provide the SES with placement rights into another position, any career SES removed for disciplinary reasons has no placement rights.

How it’s the same 

Probationers. A probationary career SES member who was not covered by 5 U.S.C. 7511 immediately before SES appointment may be removed for misconduct. The employee must be notified in writing, and the action must be effective before the end of the last scheduled workday in the probationary period. For removals over conditions arising before appointment to the SES, the agency must provide advance written notice (the proposal letter) stating specific reasons for proposed removal, an opportunity to reply, and a written decision showing reasons for the action and the effective date.

Procedures. For suspensions greater than 14 days and for removals, the SES is entitled to advance written notice, at least 7 days to respond, the right to a representative, an impartial decision, and the right to appeal the action to MSPB.

How it’s different

Nexus. The “efficiency of the service” standard used for non-SES employees does not apply in SES discipline. However, if an agency wishes to take disciplinary action based on the appointee’s off-duty actions or misconduct, the agency must demonstrate a direct connection between the off-duty actions and the appointee’s ability to carry out the assigned responsibilities of his/her/their position.

No short suspensions. The law is silent on short suspensions for SES. OPM’s interpretation is that because there is no statutory authority for such action, agencies may not suspend an SES member for 14 days or fewer. However, agencies are not restricted from issuing a written reprimand for an offense that does not warrant a suspension or removal.

No demotions. By law, there are no demotions in the SES. That said, an agency is allowed to reduce the pay of a career SES appointee by up to 10 percent as disciplinary action for misconduct.

If the agency chooses this route, the SES must be:

  • Provided written notice at least 15 days in advance of the effective date,
  • Given at least 7 days to respond,
  • Given the opportunity to have a representative,
  • Given a written decision containing reasons for any pay reduction, and
  • Given an opportunity to request reconsideration by the agency head within 7 days of the decision.

There is no third party review of this type of pay reduction. Sometimes, in lieu of a pay reduction, an agency will remove the SES member for misconduct, and then appoint them into a GS-15 or 14 position.

I hope this helps clarify the specifics on disciplining an SES. Next time, we’ll tackle SES performance. Hopkins@FELTG.com

Answering Questions on the New PIP Requirement, Post-Santos

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By Deborah Hopkins, April 27, 2021

A couple weeks ago, Bob Woods and I held a webinar on the new PIP justification requirement issued by the Federal Circuit in Santos v. NASA, No. 2019-2345, (Fed. Cir. Mar. 11, 2021), that undid more than 40 years of case precedent. In case you missed the news flash, the law now requires agencies to have substantial evidence of poor performance before they can place an employee on a PIP – and they must present that evidence as part of their case in chief before the MSPB, should there be a performance-based removal. If you haven’t yet read the article, I wrote about it last month. You’ll want to take a look at that first before you keep reading: Say Goodbye to 40 Years of Case Precedent: Agencies Must Justify PIPs.

And if you didn’t attend the webinar, we’re holding a live encore webinar May 11, where we get into all the necessary details, requirements, and takeaways. Because this is the most significant case on performance since the very early days of the Civil Service Reform Act, it’s one you can’t afford to miss.

In the meantime, I thought I’d give you a preview of the kinds of questions that Bob and I received during the webinar. Please keep in mind that the information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship.

Q: How long does an agency need to show the employee was performing at an unacceptable level, prior to implementing a PIP?

A: The Santos case doesn’t give any indication about a minimum time period, it requires the agency show substantial evidence of unacceptable performance. Sometimes one mistake on one day could equal unacceptable performance; other times it might take a month or two for an employee to reach a certain number of exceptions to a standard, that causes their performance to become unacceptable.

Agencies shouldn’t feel obligated to come up with an arbitrary number of days to satisfy the requirement (we’ve heard some agencies advising anywhere from 30 to 90 days or more – eek!), but instead should look at the performance standards to be sure the unacceptable performance the supervisor has seen, actually matches the written standard for unacceptable. As soon as that happens, the PIP can be justified.

Q: Can the notification of unacceptable performance be part of the PIP? Our standard PIP normally includes language like “This is to information you that your performance is unacceptable” and gives examples. Is this adequate?

A: Yes, it sounds adequate. While FELTG recommends including the justification document as an attachment, this approach you’ve detailed should also satisfy the Federal Circuit’s requirement post-Santos to document pre-PIP unacceptable performance.

Q: For the “roller coaster” employee who, for example, “passes” the initial 30-day PIP, and receives notification that they passed, if they then later dip in performance and their performance warrants removal, is it necessary for the agency to provide another notice that the performance has dipped before removal? Without an intervening notice, the only notice the employee would receive before the removal is that they passed the PIP.

A: There’s no requirement in the law to provide notice, but we recommend at the conclusion of the PIP, to issue a “Performance Warning Letter” that lets the employee know they will be removed at any time between now and X date (the end of the one-year period, with Day 1 of the PIP starting the year) if their performance becomes unacceptable on the critical element(s) from the PIP.

If the employee falls back into unacceptable performance after successfully completing the PIP within the one-year period, the only notice they receive at that point is the notice of proposed removal, which will articulate their unacceptable performance that the proposed removal is based on.

Q: What are your thoughts regarding employees who, at times, perform “other duties as assigned” and are then placed on a PIP based on unacceptable performance on those ODAA? Is it still OK to place an employee on a PIP based on the observed unacceptable performance or is it better to stick to the critical elements outlined in the performance plan?

A: A PIP may only be used for unacceptable performance related to the critical elements in the employee’s performance plan. If the ODAA relates to a critical element, the agency is free to PIP. But if it’s something unrelated to any critical element, for example a special assignment because the employee is on covid-related telework, it would be inappropriate to place an employee on a PIP. Such a situation could be handled with the Chapter 75 procedures. We have a webinar on this topic May 13, Handling Teleworker Performance and Conduct Challenges, if you need more details.

Good luck with this new requirement. Let us know how it’s going out there. Hopkins@FELTG.com

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

The Golden Doodle Who Wouldn’t Nuzzle: A Service Dog, or Not?

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By Deborah Hopkins, April 20, 2021

While preparing the materials for an upcoming training session Ricky Rowe and I are presenting at FELTG’s annual Emerging Issues in Federal Employment Law virtual forum, I came across a case that I thought prudent to share – especially because, as return to work orders are issued in the coming months, agencies are likely to see an uptick in requests for service animals and emotional support animals in the workplace.

In a recent case at the Department of Veterans Affairs, the complainant suffered from PTSD, depression, anxiety, and panic attacks. Because of her medical conditions, she requested an accommodation to bring her trained service dog, a golden doodle, to work. She informed the agency that her dog was scent-trained to recognize chemical shifts in her body when she was escalating into anxiety or panic attacks. The dog was trained to alert and calm her before she reached the panic stage. The complainant explained to agency management that her dog might bark in the process of alerting her to her escalating symptoms, as that was the dog’s alert mechanism.

The agency approved accommodation for a 30-day trial. During a meeting shortly thereafter, the dog repeatedly barked and was disruptive for more than 30 minutes. Because of the disruption,  management began considering removing the interim accommodation, but did not take action.

The dog became even more disruptive in a subsequent meeting. According to agency management, the dog appeared impossible to handle. During the meeting, it continually barked, and jumped on the complainant multiple times, and she was unable to calm it down.

The complainant explained the dog’s behavior was an alert to her oncoming anxiety attacks. She said that the dog was trained to stand in front of her, put her paws on her shoulders and nuzzle her to calm her down. Agency management’s account of the events was that the dog was not nuzzling the complainant, but jumping on her and others in the workplace, and was uncontrollable.

As a result, the agency terminated the interim accommodation, stating that the dog was too disruptive and impossible to handle in the office. The agency invited the complainant to discuss alternative accommodations, including liberal use of leave when she was experiencing symptoms, but she maintained that other than having her service dog, there was no other useful accommodation.

The agency denied her request to keep the dog in the workplace, so she filed a complaint and the FAD found for the agency. On appeal, EEOC looked at the facts and said the agency was not obligated to allow the service dog in the workplace because the complainant “failed to provide evidence to adequately establish the need for the presence of her dog in order to assist her in performing [her] essential functions.”  EEOC also said they “cannot reasonably conclude that the Agency’s decision to terminate its trial approval constitutes an unlawful failure to accommodate.” Kathie N. v. VA, EEOC No. 2019003312 (Sep. 22, 2020).

So remember, if an employee wants to bring a service animal into the workplace, having a disability is not enough. The employee must establish the need for the specific use or presence of the service animal as accommodation, and that no other accommodation would be effective. For more on this, join us for the session Barking Up the Wrong Tree? Service and Therapy Animals in the Workspace, part of Emerging Issues in Federal Employment Law, April 28. Hopkins@FELTG.com

Say Goodbye to 40 Years of Case Precedent: Agencies Must Justify PIPs

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By Deborah Hopkins, March 16, 2021

For the past 20+ years, we have taught a principle in performance cases that has been around since the beginning of the Civil Service Reform Act: An agency does not need to justify putting an employee on a performance demonstration period, what we at FELTG now refer to as a DP, formerly known as a PIP. In teaching that well-established principle, we relied on the statute (5 U.S.C. 4302-4303), relevant OPM regulations, and a number of foundational MSPB cases, such as  Wilson v. Navy, 24 M.S.P.R. 583 (1984); Wright v. Labor, 82 M.S.P.R. 186 (1999); and Clifford v. USDA, 50 M.S.P.R. 232 (1991).

Imagine our surprise last week when the Federal Circuit issued a decision that said an agency must have substantial evidence that the employee was performing poorly BEFORE it is allowed to put an employee on a PIP. Santos v. NASA, No. 2019-2345 (Fed. Cir. Mar. 11, 2021).

Not long after beginning work for a new supervisor, the appellant (Santos) was placed on a 45-day PIP, and given 11 deliverable assignments. His supervisor met with him to discuss his progress and give him feedback on his work product. The supervisor ultimately determined that Santos’s performance on the deliverables was unsatisfactory, so she proposed removal for unacceptable performance, and the deciding official concurred in the penalty.

Santos appealed and claimed, among other things, that he was mistreated because of his military service, and that work he did not perform while he was on military leave was unfairly used to assess his performance. Part of his appeal included a claim that he should never have been put on a PIP in the first place, something the Board AJ did not address because the matter was well-settled in  MSPB case law: “[A]n agency is not required to prove that an appellant was performing unacceptably prior to the PIP.” Wright v. Labor, 82 M.S.P.R. 186 (1999). On review of the Board’s case, the Federal Circuit said:

The Board has held that … an agency [is not required] to prove that an employee was performing unacceptably prior to the PIP in order to justify a post-PIP removal. See Wilson [supra] … (finding “no statutory or regulatory basis” to require an agency to establish appellant’s unsatisfactory performance prior to the PIP1). The Board has consistently applied this interpretation to PIP removals.

Yes, this is as old as time, in our business. But here’s where things change:

We have not directly addressed the question of whether, when an agency predicates removal on an employee’s failure to satisfy obligations imposed by a PIP and that removal is challenged, the agency must justify imposition of a PIP in the first instance under 5 U.S.C. § 4302, though we have discussed the general relevance of pre-PIP performance to a PIP removal. See Harris v. Sec. & Exch. Comm’n, 972 F.3d 1307, 1316–17 (Fed. Cir. 2020). Today we confirm that the statute’s plain language demonstrates that an agency must justify institution of a PIP when an employee challenges a PIP-based removal. [bold added]

The Federal Circuit arrives at this by focusing on the 5 U.S.C. § 4302(c)(6) requirement that agencies remove, reassign or demote employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. That opportunity period is the DP/PIP. That’s not new. But then:

To “continue to have unacceptable performance” during the PIP, as the statutory text requires, an employee must have displayed unacceptable performance prior to the PIP. Under the plain meaning of the statute, then, an agency must defend a challenged removal by establishing that the employee had unacceptable performance before the PIP and “continue[d] to” do so during the PIP. [bold added]

Santos also relies on discussion in the notice of proposed rulemaking for OPM’s recently amended regulation at 5 C.F.R. § 432.104, which says agencies are not relieved “of the responsibility to demonstrate that an employee was performing unacceptably – which per statute covers the period both prior to and during a formal opportunity period – before initiating an adverse action under chapter 43.” More from the court:

Confirming an agency’s obligation to justify initiation of a PIP where the PIP leads to removal is particularly appropriate, moreover, in situations resembling Santos’s, where an employee alleges that both the PIP and the removal based on the PIP were in retaliation for protected conduct. Otherwise, an agency could establish a PIP in direct retaliation for protected conduct and set up unreasonable expectations in the PIP in the hopes of predicating removal on them without ever being held accountable for the original retaliatory conduct. Indeed, these are the circumstances in which the issue of pre-PIP performance would be most relevant.

We used to teach that as long as an agency could articulate the reason for poor performance, they could put an employee on a PIP, and the employee could not challenge the placement on a PIP. So, where does that leave us, post-Santos?

What’s New:

  • Agencies must have substantial evidence of poor performance in order to justify putting an employee on a PIP.
  • The decision about how to justify the PIP is up to the agency, so documentation of the reason(s) the supervisor begins the PIP should suffice. That’s something we at FELTG have always taught supervisors to do, in case they ended up defending against a reprisal complaint at some point in the future. But a big question lingers: is that enough?
  • The Federal Circuit does not prescribe any particular evidentiary showing with respect to the employee’s pre-PIP performance, but the emphasis is on continued poor performance. So how long is long enough, before implementing a PIP?
  • The burden is on the employee to prove that the motive for imposing the PIP was discriminatory.

What’s Still the Same:

  • “[A]n employee may not seek review of the decision to implement a PIP at the time it is instituted, either at the Board or otherwise.”
  • The institution of the PIP satisfies the notice component of 5 U.S.C. 4303.

Go ahead and absorb that. It changes 40-plus years of precedent. It’s completely doable, and we’ll explain exactly how to do so during MSPB Law Week later this month, or on May 11 at 11 am ET when we present Justifying Your PIP? What the Precedent-Breaking Fed Circuit Decision Means.

And before I go, let me just say this: some of the facts in this case don’t look good for the agency – the actual administration of the PIP was fine, but the proximity of certain management actions to Santos’s military service should be scrutinized. The Federal Circuit remanded the case back for a Board determination about whether Santos was the victim of reprisal under USERRA, so we don’t have an answer on that yet. But regardless of the outcome, we appreciate his service. Hopkins@FELTG.com

What Do You Charge When Someone Buys Marijuana on Duty, in Uniform?

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By Deborah Hopkins, March 16, 2021

One of the topics we spend an entire day discussing during FELTG’s MSPB Law Week (next offered virtually March 29 – April 2) is disciplinary charges. Poorly drafted charges too often cause agencies to lose cases that they otherwise should easily win, because there’s no problem with the evidence.

Charge drafting is a highly technical area of the law, and a small mistake can often cost an agency an entire case. Sometimes you get lucky, but why leave it to luck when you don’t have to?

As FELTG has taught for more than 20 years, an agency must prove every word in a charge in order for the charge, and corresponding discipline, to be upheld. So imagine the flutter of panic I felt when a longtime FELTG reader sent me a recent Federal Circuit case, with the charge from the case as the subject line:

“Unacceptable Conduct/Purchase and/or Possession of an Illegal Drug While on the Clock and in Uniform.”

Yikes. There are a few things that make me nervous about this charge, including:

  1. Multiple slashes – punctuation marks are almost always a no-no
  2. The words “and” and “or” – conjunctives are dangerous
  3. Too many descriptive terms – terms such as “while on the clock” and “in uniform,” can be difficult to prove

Before we get into why this charge makes me nervous, allow me to provide a summary of the facts in the case, Holmes v. USPS, No. 2019-1973 (Fed. Cir. Feb. 8, 2021).

  • During an OIG investigation, the appellant, named Holmes, was caught on video “engaged in alleged narcotics transactions with Mr. Baxter [another USPS employee] while on duty.”
  • Baxter later admitted to selling marijuana from his USPS vehicle.
  • Six other employees who were also observed in the surveillance video admitted to purchasing marijuana from Baxter.
  • Holmes initially denied purchasing marijuana from Baxter while on duty, despite video surveillance showing two separate instances where Holmes appeared to give money to Baxter in exchange for some kind of substance that looked like a “rolled cigar,” and turned out to be marijuana.
  • Holmes received a notice of proposed removal with the above-mentioned charge.
  • In his oral response, Holmes told the Deciding Official that he was “so embarrassed,” “really wanted to apologize,” and that he “made this little mistake.” The agency removed him, and he appealed his removal.
  • The Federal Circuit ultimately affirmed the removal.

There’s nothing earth-shattering in this decision (though you might be interested to know that five of the other employees who were removed for the same misconduct took their removals to arbitration, and the removals were mitigated to suspensions), but there are some lessons to learn from the charge. Next time around, the agency might not get so lucky with a detailed charge.

Let’s look at similarly drafted charges, that went the other way for agencies.

Slashes and Punctuation Marks

The case: Bennett v. DVA, CH-0752-15-0367-I-1 (2016)(NP) 

The charge: “Disrespectful, intimidating language toward supervisor/Conduct unbecoming a Federal employee.”

The outcome: Because of the way the charge was drafted, the MSPB merged the “conduct unbecoming” with the “disrespectful, intimidating language” clause. The MSPB found the appellant’s speech was disrespectful, but not intimidating, and reversed the removal.

Conjunctives

The case: Brott v. GSA, 116 M.S.P.R. 410 (2011)

The charges:

  1. On July 23, 2008, disorderly conduct and failure to follow instruction, specifically, using abusive language to a coworker, while loading the packing belt line, and leaving the facility when his supervisor ordered him to stop using abusive language.
  2. On July 24, 2008, failure to follow instructions to report to the facility manager, James Gorman, regarding the incident of July 23, 2008, and absence without leave (AWOL).

The outcome: Because of the way these charges were drafted, there was some confusion and discussion about what had actually happened. The MSPB found the agency failed to prove charge 1 because the agency did not prove both the disorderly conduct and a failure to follow instruction. Removal reversed.

Descriptors

The case: Parkinson v. DoJ, SF-0752-13-0032-I-1 (October 10, 2014)(NP)

The charge: “Unprofessional conduct – on duty.”

The outcome: The employee engaged in unprofessional conduct by having inappropriate relationships with contractors, but the agency did not provide evidence the conduct occurred while the employee was on duty. The charge fails.

Takeaways

In the Holmes case where the USPS employee purchased marijuana, there could have been a very different outcome if only minor things were different:

  • Had the employee successfully argued to the MSPB that he was on a break when he purchased the marijuana, the charge would have failed. See Downey v. DVA, 2013 MSPB 24.
  • Had the employee been wearing only part of his uniform, he may have successfully argued that he was not in uniform, and the charge would have failed.
  • The MSPB may have gotten picky about the slashes and discussed the and/or conundrum, and decided the agency did not prove both sides of the charge.

The agency’s removal action in Holmes was ultimately upheld. But might there have been a bit safer way to draft the charge?

In Parkinson, above, MSPB said, “An agency is not required to affix a label to a charge but may simply describe actions that constitute misbehavior in narrative form in its charge letter; however, if the agency chooses to label an act of alleged misconduct, then it must prove the elements that make up the legal definition of the charge.” I couldn’t have said it better myself.  Hopkins@FELTG.com

Takeaways from OPM’s Guidance for Implementation of Executive Order 14003

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By Deborah Hopkins, March 8, 2021

Over the past several weeks, we’ve been anticipating guidance from OPM on Executive Order 14003, and last Friday afternoon, we finally received it. (Who would have ever thought 6 weeks could feel like such a long time!) After an initial read, we’ve highlighted a few items on how EO 14003 impacts the rescinded EOs — items that will answer a number of questions that have been lingering since January 22.

On Executive Order 13950 (Schedule F):

    • OPM approvals of agency petitions to move positions to Schedule F are revoked. Any agency that received such an approval must cancel any actions taken based on OPM approval of the agency’s petition.

On Executive Orders 13836 (Rules for Bargaining) and 13837 (Union Time)

    • Reopen those contracts, folks. Agencies are directed to reopen any union contract that contains any provision implementing President Trump’s workforce EOs. Not only that, if agencies are currently in the process of negotiations, or even at the stage where an impasse has been taken to the Federal Service Impasses Panel, they are now required to revisit the issue and suspend, revise or rescind any changes that were made or proposed as a result of the Trump EOs.
    • Agencies should “take a hard look” to see if EO 13836 influenced the strategies that were used in bargaining with unions. EO 14003 neither requires nor prohibits affected agencies from reopening CBAs on other matters not related to subjects covered by EO 13836.
    • Also on 13836, agencies are no longer required to submit CBAs and arbitration decisions to the OPM CBA public database. Interestingly, “OPM, under its own statutory and regulatory authority, is still requiring that agencies submit to OPM, within 10 days of issuance,” any arbitration awards involving performance and misconduct-based actions under chapter 43 and 75.
    • On 13837, if agencies negotiated their contracts to limit union official time to no more than 25 percent for any union official, or limited the amount of official time to one hour per bargaining unit employee, agencies must “engage impacted unions, as soon as practicable, to suspend, revise or rescind the actions covered in these CBA provisions.”

An interesting footnote to that: “To the extent agencies were complying with the terms of an expired CBA immediately prior to implementing any EO 13837 requirements, agencies must revert to prior practices until a new agreement is negotiated with the union.” (emphasis mine)

On Executive Order 13839 (Discipline and Performance Accountability)

    • “[A]gencies should not delay in implementing the requirements of Section 3(e) of EO 14003 as it relates to any changes to agency policies made as a result of OPM’s regulations.”

OPM will also be amending its recently issued regulations on EO 13839, to comply with 14003. There will be at least a few weeks, if not several months, between now and when OPM’s amended regulations are posted for comment and ultimately become final, where agency actions might be in conflict with the existing OPM regulations that incorporated EO 13839. This OPM guidance lets agencies know they are free to make policy changes to comply with EO 14003 before OPM’s regulations are amended, and agency leadership will not need to be concerned that their policies and subsequent actions are in violation of OPM regulations. In other words, OPM won’t be enforcing those regulations.

For example, agencies would now be permitted to implement a clean record agreement with an employee, even though current regulations prohibit such an action. Eventually the regulations will incorporate the directives found in 14003.

This is just a selection of takeaways, and isn’t comprehensive, so be sure to read the memo for yourself then join me and Ann Boehm on April 8 as we entertain a discussion on what this all means for Federal agencies, as well as how this guidance interplays with Executive Orders 13985 and 13988, in the webinar Biden Executive Orders, OPM Guidance, and an Update on the Status of the Civil Service.

We’re also preparing a list of follow-up questions for OPM, and will have answers in time for the training. We would be happy to include your questions as well, if you’ll send them along. Hopkins@FELTG.com

Does Saying ‘All Lives Matter’ Create a Hostile Work Environment?

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By Deborah Hopkins, February 10, 2021

Last summer, at the height of the Black Lives Matters protests, the U.S. Office of Special Counsel (OSC) issued guidance on whether Federal employees were permitted to display Black Lives Matter paraphernalia in the workplace. According to OSC, the phrase “Black Lives Matter” (BLM) has become a motto for protesters and organizations “seeking to raise awareness of, and respond to, issues associated with racism in the United States.” Because BLM is centered on issues, it is not considered political organization. Therefore, employees are not prohibited from wearing or displaying BLM merchandise in the workplace.

As with any movement, there are supporters and non-supporters of BLM. One of the catchphrases of opponents to BLM is “All Lives Matter.” Much has been written about how and why this phrase is offensive to Black individuals, even when the perpetrator claims to have non-racist intentions.

So let’s look at a hypothetical, coming to a workplace or Zoom meeting near you. Employee X comes to work wearing a BLM shirt. Employee Y, a co-worker, looks at the shirt and says to Employee X, “All Lives Matter.” Employee X contacts an EEO counselor and claims hostile work environment harassment based on race.

Which leads me to the obvious question: Can a statement such as “All Lives Matter” create a hostile work environment?

I know this is a divisive topic. I know I’m taking a risk even writing about it. There are a lot of strong feelings about BLM and ALM. But this stuff is happening, right now, maybe in your agency, and you need to be prepared to deal with it – the legal way.

Harassment can be a difficult subject to handle. When you find yourself faced with what appears to be a hot-button subject such as this, take a deep breath or two, and remember to always come back to the framework: 1) What are the elements of a hostile work environment, and 2) Is there agency liability?

Unwelcome Conduct

In a hostile work environment case, the first step of the analysis is to identify the conduct that is unwelcome in the workplace. Unwelcome conduct might be words, jokes, name-calling, use of epithets or slurs, threats, email forwards, touching or physical assaults. Conduct is also broad enough to include objects or pictures worn or posted in the workplace.

The primary focus in these cases is on whether the conduct was unwelcome to the victim, not on what the speaker’s intent was – though malicious intent can go to severity.

The question: Could a coworker uttering the phrase “All Lives Matter,” or wearing a shirt or posting a sign in their office with that slogan on it, be considered unwelcome conduct?

____ Yes

____ No

Based on Protected EEO Category

The next element to consider is whether the conduct was based on a protected EEO category: race, color, national origin, religion, gender, disability, age, genetic information, or reprisal.

The question: Is the statement “All Lives Matter” related to an EEO category?

____ Yes

____ No

If so, which category or categories?

____________________________________________________________________

Severe or Pervasive

When determining whether the conduct creates a hostile, intimidating, or abusive work environment, the severity and/or pervasiveness of the conduct must be considered. Some of the items to think through include:

  • Is the complainant offended by the conduct?
  • Would a reasonable person be offended by the conduct?
  • The frequency and duration of conduct
  • The egregiousness of the conduct
  • The vulnerability of the victim, considering factors such as age and mental capacity
  • The makeup of workforce — is the victim the only employee in the EEO category?
  • The social context
  • Whether the conduct is physically threatening or humiliating
  • Whether the conduct unreasonably interferes with an employee’s work performance
  • Relative positions of perpetrator and victim

The question: Is one utterance of “All Lives Matter” from one co-worker to another, severe or pervasive enough to alter the terms, conditions, or privileges of employment?

____ Yes

____ No

Does this change if the person making the statement is a supervisor?

____ Yes

____ No

Note: While most EEO case law says that a one-time instance of offensive conduct does not generally rise to the level of a hostile work environment, there are a number of cases where once was enough. Here are a few to get you started: Lashawna C. v. Department of Labor, EEOC Appeal No. 0720160020 (Feb. 10, 2017); Frank v. USPS, 2013 EEOC Appeal No. 120110223 (Jan. 31, 2013).

Agency Liability

The hypothetical above didn’t say anything about the agency’s response to the incident, so we don’t have enough information to discuss liability. That’s another article altogether. But I can tell you, these kinds of incidents have occurred and are likely to occur, and the agency has a responsibility to protect its employees from harassing conduct. If you see or hear anything like this, it’s critical to intervene immediately.

I don’t have a definitive answer about whether this one statement would create a hostile work environment. As of this morning, there isn’t an EEOC decision involving the term “All Lives Matter.” I have to think that’s because of timing. Perhaps those cases are making their way through the EEO process now because ALM wasn’t a thing until fairly recently. There are, however, a few cases where “Black Lives Matter” comes up as a search term. If you’re interested, here are a few citations: Emerson P. v. USDA, EEOC No. 2019001823 (Mar. 20, 2019); Sherman H. v. Reclamation, EEOC No. 2019002422 (May 7, 2019); Jaqueline L. v. DLA, EEOC No. 2019001449 (June 23, 2020).

If you’re free March 2-4, join FELTG for the virtual training class Conducting Effective Harassment Investigations, where we’ll give you lots more on this topic and more, in three half-day segments. Hopkins@FELTG.com

Is Whistleblowing Different Under a Biden Administration?

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By Deborah Hopkins, February 10, 2021

We have a new President in the White House, there’s something you may not have realized: He sees things differently than the last guy who occupied 1600 Pennsylvania Avenue. At FELTG we try not to wade into the merits of politics; our job is to take what the current administration says about employment law topics, and relay those to you within the existing framework of law and regulation, plus any relevant Executive Orders. That said, there are certain ways in which the politics of the party in control impact what we teach and how we teach it. Take whistleblowing, for example.

Federal employees who make protected disclosures about waste, fraud, or abuse in the government are considered whistleblowers, and the highest level of workplace protections of any employee group. Higher than veterans, people with disabilities, union officials, religious minorities, LGBTQ individuals, and more. The law says that whistleblowers may not be fired, disciplined, or otherwise mistreated because of their disclosures. If an agency takes an action against a whistleblower, it needs to provide clear and convincing evidence the action was not taken because the employee blew the whistle.

Under President Trump’s administration, there was a focus on firing leakers who shared inside information with the public. Firing a leaker is perfectly legal, unless of course the leaker is a whistleblower – in which case it’s against the law. So, over the last four years agencies concentrated on looking closely at the nature of the disclosure (the “leak”) to determine whether it rose to the level of protected whistleblower activity, or whether it was simply misconduct. If it was a close call, many agencies took the side of management and adopted the stance the disclosure was not protected, and handled the employee accordingly.

Today, we still have to look at the nature of the conduct to determine if it is protected activity, but under President Biden the philosophy about whistleblowers has shifted. Instead of viewing whistleblowers as leakers, the President (when a candidate and then as President-elect) has spoken about the need for employees to disclose waste, fraud, and abuse in the government – heck, he even hired a high-profile whistleblower to be part of his transition team. So now, if there’s a close call, perhaps we’ll see agencies take the side of assuming the disclosure was protected.

This Republican/Democrat dynamic is unsurprising. Republican administrations tend to be more pro-management and Democratic administrations tend to be more pro-employee. Members of both parties have talked publicly, and emphatically, about the importance of protecting whistleblowers – but traditionally hairs have been split when looking at what was disclosed and whether it was protected activity.

What does this mean for whistleblowing in 2021? You might expect, as political appointees are confirmed or placed in your agency, for the tone about whistleblowing to change. Perhaps you will be encouraged to settle existing reprisal complaints. Perhaps whistleblowers will be urged to come forward with disclosures. Perhaps Congress will pass a new law with more protections.

And perhaps not. Regardless of who is in the White House, whistleblower reprisal is going to occur – though our goal at FELTG is to educate the powers-that-be so that reprisal eventually stops altogether. That might be your job too, and now is a good time to check in with what you know, and what you might not know, about whistleblower protections. As timing would have it, Bob Woods will be covering the most important details in just 60 minutes during the February 25 webinar Why, How and When to Avoid Whistleblower Reprisal. We hope you’ll join us. It’s too important to miss.  Hopkins@FELTG.com.