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MSPB’s Statistics for 2015

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By William Wiley

The Board published its annual summary of cases decided a couple of months ago. Normally, I dig into those win/loss tables with glee, separating the agencies who won most of their appeals from the pitiful losers who are wasting the government’s money. Yes, we are not happy here at FELTG unless we are pointing out where someone else made a mistake.

Unfortunately, in this report, there was no joy in Mudville. That’s because most of the agency-specific data mixed furlough appeals with other adverse actions such as removals. And as there were many, many furlough appeals, with agency success rates hovering in the 99% range, we really couldn’t tell which agencies were doing a good job of holding employee’s accountable for misconduct, and which ones were not. So no opportunity for us to write a snarky finger-pointing article about the Biggest Loser agencies for 2015. Poop.

However, the report did give us some across-the-board numbers of interest to those of us who care about federal employment law, numbers that exclude the anomaly of all those furlough appeals. When we use that filter to look primarily at removals, here’s what we find:

  • 80% is a repeating statistic. In non-furlough removals, MSPB upheld the agency’s action in 80% of the cases in which a decision was issued. Similarly, the Board members agreed with their judges’ outcomes in 80% of appeals in which there was a petition for review filed. As you’ve read in this newspaper, FELTG takes the position that after 40 years of learning this law, the Board should be upholding agency removals close to 100% of the time. Federal agencies should not be making critical mistakes in one out of five dismissal actions.
  • Half of 80% is 40%. And that’s the share of MSPB’s non-furlough case load devoted to reviewing removals (and a few long suspensions and demotions) for misconduct.
  • About 10% of the Board’s caseload is devoted to protecting veterans rights (USERRA/VEOA) and another 10% of the caseload is devoted to protecting whistleblower rights (IRA). You readers who are purists recognize that I’m doing some generalization here, but I know that you’ll cut me some slack as the point here is relativeness, not specificity.
  • 60% of all initial appeals settled, a statistic that is steady year in and year out. That’s why, among other reasons, here at FELTG we’ve decided to offer an open-enrollment seminar in the fall specifically to teach settlement options and skills. We may think of ourselves as litigators, but the numbers say that we actually are more likely to be deal-makers.

The above is relatively typical for MSPB, with no great surprises in the statistics. However, there are a few findings that are worth an extra degree of thought:

  • 5% of the Board’s non-furlough caseload last year was probationary terminations. Even though the appeal rights of terminated probationers is severely limited, smart agencies will have documented for the record why the employee was released during probation. You don’t need much in the way of post-employment misconduct/performance procedures to terminate a probationer, but you still will want to have a legitimate reason documented in the file, both for the possible MSPB challenge as well as the inevitable EEO complaint.
  • Only 2% of the Board’s decisions resulted in mitigation of the penalty. With all the whining many of us do about comparator employees and judges making management penalty decisions, you’d think that number would be higher. Well, it’s not.
  • 3% of the caseload in 2015 was appeals of unacceptable performance removals under 5 USC 432. This lowly statistic has been relatively steady for maybe 20 years. With the frustration shown by Congress and certain members of the public directed toward “bad civil servants who can’t be fired,” one might think that this number should be higher, mightn’t one.

The big number for MSPB last year was the overall production rate. The Board issued over 28,000 decisions including all those furlough appeals. That’s a higher volume than produced by MSPB since the appeals of all those striking PATCO employees back in the early 80s. Once more, the good people who work at the Board hunkered down and dispensed justice both expediently and (usually) fairly. We may not agree with all their opinions and procedural quirks, but we have to admit: they know how to do what they’re being paid to do. Wiley@FELTG.com

MSPB Fails to Understand Its Role in Adjudication

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By William Wiley

Once again, I willingly choose to engage in the crime of lèse-majesté. Consider the following exchange:

Bill:         Hey, Deb, how did you get to work today?

Deb:        Well, I drove my Ford, as usual.

Bill:         You’re lying. I saw you driving a truck.

Deb:        I wasn’t lying. I drove a Ford like I said; it just happened to be a truck.

Bill:         No, when you said a “Ford,” I decided that you really meant to say “car.” When I saw that you weren’t driving a car, I concluded that you were lying.

Doesn’t seem quite fair, does it. Deb said one thing; Bill re-characterized it as something else; then Bill decided that Deb was lying about the something else. It would seem that a person should be held accountable for doing what she says, not what someone else thinks she meant when she said it.

And that’s exactly what the Board said about 20 years ago in Otero v. USPS, 73 MSPR 198 (1997). In that seminal opinion, the judge had re-characterized the agency’s charge into something he thought better fit the circumstances, and then found that the re-characterization was not proven.  In its wisdom, the Board said the judge was wrong to re-characterize. Noting that 5 USC Chapter 75 states that the agency must tell the employee the “reasons” for the removal, and that the narrative paragraph the agency used states facts that are a statutory “reason,” the Members faulted the judge for the re-characterization and reversed his logic as unsound. That rationale is very much like the rationale that leads to the conclusion that Bill’s logic is unsound and unfair when he says that when Deb said “Ford,” she meant to say “car.”

Unfortunately, the Board appears to have reverted to the pre-Otero unfair way of doing things. Here was the charge and some samples of the specifications in a recent removal, O’Lague v. DVA, 2016 MSPB 20:

Charge: Inappropriate Conduct

Specification 1:  On 4 February 2015, you recorded in the VA Police Daily Operations Journal (VAP DOJ) that, at 0330 hours, you conducted a vehicle patrol of all parking lots, roads and grounds. However, Officer Bright testified that he and Officer Brad Huffman-Parent had possession of the keys for both VA Police vehicles at that time and you could not possibly have conducted such a patrol.

Specification 2:  On 4 February 2015, you recorded in the VAP DOJ that, at 0358 hours, you conducted a vehicle patrol of all parking lots and roads. However, Officer Bright testified that he and Officer Brad Huffman-Parent had possession of the keys for both VA Police vehicles at that time and you could not possibly have conducted such a patrol.

Specification 3:  On 4 February 2015, you recorded in the VAP DOJ that, at 0600 hours, you conducted a vehicle patrol of all parking lots, roads and grounds. However, Officer Bright testified that he and Officer Brad Huffman-Parent had possession of the keys for both VA Police vehicles at that time and you could not possibly have conducted such patrol.

On appeal, the judge, then the Board, concluded that these seven specifications actually were charges of “making false statements” EVEN THOUGH THERE ISN’T A SINGLE FREAKING “F” WORD IN SIX OF THE SPECIFICATIONS! And once that unjustified leap of conclusion-drawing is made, the agency was held accountable for not only proving the facts (the “reasons”) in the specifications, but also the elements of a Falsification charge:

    1. That there was false information,
    2. Knowingly provided,
    3. With the intent to deceive the agency, and
    4. For personal gain.

Hey, Board. If DVA had wanted to charge “Falsification,” it knows how to charge “Falsification.” It clearly did not intend to charge falsification because it labeled the misconduct with the generic charge of “Inappropriate Conduct” followed by specific factual statements as to what the employee did that was inappropriate, as clearly allowed for in Otero.  The Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency; the Board may not substitute what it considers to be a more adequate or proper basis. Gottlieb v. DVA, 39 MSPR 606 (1989). With all due respect, you are not in the charging business.

While I’m on a roll lecturing the Board, would you guys please stop talking like a bunch of lawyers who fell asleep during the Plain English class? How about “reasonable” instead of “did not exceed the bounds of reasonableness,” “serious” instead of “nonfrivolous,” and “lied” instead of “not credible”? We’re about to get a new President, and it may be someone who prefers simple words. Make America strong again by using plain English.

Some might say that since the Board eventually upheld the charges in O’Langue, no-harm no-foul. Well, those some would be wrong. This is an ugly road for the Board to go down. MSPB’s role in this business is and always has been to adjudicate the charges brought by agencies, not to come up with charges on its own, and then decide whether they have been proven. Agencies should live and die by their characterization of the charge.  MSPB has long held that an agency is bound to prove what it charged, not what it could have charged (e.g., charge “Theft” and you’d darned sure better have proof of an element of permanent deprivation because the Board will not re-characterize your charge to some lesser charge such as “Unauthorized Removal”). The Board is out of line when it labels acts of misconduct differently from what the agency labeled them, thereby retroactively changing the agency’s proof burden after the removal is taken. You can’t change the rules after the game has been played (unless, of course, you’re running a political convention).

By the way, if an agency charges “Inappropriate Conduct” and the Board on appeal re-characterizes the charge into “Falsification,” has the Board not violated the employee’s right to due process? MSPB sure beats up on Deciding Officials who testify on appeal to regarding a charge that was not noticed. Does not the same logic apply when the Board comes up with a new non-noticed charge? Hmmm.

In O’Lague, DVA said the employee was driving a Ford. The Board said that the agency was wrong, that a Ford is not a truck. And the Board is thereby driving me freaking crazy. Wiley@FELTG.com

Preponderance of Evidence Revisited

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By William Wiley

We’ve all been frustrated at one time or another with the help (or non-help) we’ve received from an unfriendly Information Technology specialist, some of which live half-way around the globe. Did you ever slam down the phone and wish you could just fire them? Well then, you’ll be interested in the following evidence in a removal of a close-by IT specialist for discourteous behavior, an employee who had previously been suspended for 7 days (for similar discourtesy), then 14 days for failing to follow orders.

Specification Proof In Support of Proof Against Board Ruling
1.1. Appellant called a customer a jerk. Customer testified that appellant said he was “acting like a jerk” or “words to that effect.” Appellant denied using the word ‘jerk.” The customer’s testimony was equivocal. Although customer’s testimony that appellant was “rude” was not equivocal, that was not the charge. NOT SUSTAINED.
1.2. Appellant was loud and discourteous to a customer, a senior agency manager. Customer testified that appellant was loud, belligerent, used hand gestures, leaned forward, and conveyed an attitude she was unwilling to provide assistance. Appellant denied being discourteous or loud. Although perhaps unpleasant, it is debatable whether appellant’s behavior rose to the level of discourteous. NOT SUSTAINED.
2.2. Appellant got in the face of a coworker with a customer and said animatedly, “Are you monitoring me now, too?” The coworker testified that the interaction occurred as charged. There were tensions in the workplace. Tensions go to penalty, not to whether misconduct occurred. SUSTAINED.
2.3. Appellant was routinely discourteous, talked bad about other elements of the organization, was a bully that liked to intimidate others, and treated people in a humiliating manner. A customer stated the facts in the charge in a sworn statement. The interactions were confrontational, based on organizational friction, but not discourteous. As there was no testimony or other evidence to support these generalized accusations, NOT SUSTAINED.
2.5. Appellant was rude and disrespectful toward her former supervisor by yelling at him across a parking lot, “Don’t you ever come into my workplace again.” The former supervisor stated the facts in the charge in a sworn statement. Appellant denied yelling or making the statement in the specification. Live testimony trumps a sworn written statement. NOT SUSTAINED.

Agencies don’t often lose MSPB appeals because of a failure to prove specifications. Usually, agency losses can be attributed not to a lack of charge proof, but to a procedural screw-up: due process violation, poorly drafted charge, weak Douglas analysis. This case is an exception because most of the specifications failed completely. Of the original three charges each with up to seven specifications, the Board sustained only one specification and mitigated the removal to a five-day suspension. Ballard-Collins v. Army, SF-0752-13-0617-I-1 (2016)(NP).

As for the Board’s evidentiary findings, we’ll leave it up to you to decide whether you think the agency proved by a preponderance of the evidence (more likely than not) that the appellant was discourteous. The evidence is a classic he-said/she-said. For each specification considered on PFR, the appellant simply denied the charge, and a customer or co-worker supported the charge by sworn testimony or affidavit. In all but one specification, the Board decided to believe the appellant, not the agency witnesses.

As for us practitioners, there are a few basic takeaways worthy of note:

  1. The agency should not have relied on written statements as proof in the face of the appellant’s contrary live testimony. Almost every time, the Board will believe in-person sworn testimony over written affidavits.
  2. SPECIFICITY! We’ve taught for 15 years that charges and specifications need to be short and specific. Generalized charges hardly ever withstand Board review. Don’t use them.
  3. Charge what you can prove. If you can prove rude behavior, charge rude behavior. Don’t try to prove “discourtesy” by submitting evidence of “rudeness.” The Board is a nit-picky old bitty when it comes to the wording of a specification.

Some readers will, no doubt, conclude that the Board made a mistake in the weighing of the evidence. Our reality is that we cannot always be sure of how a judge will evaluate our attempt to prove the charges. However, there are strategic steps we can take to put our case in the best light possible. Understanding and using some of the basic principles of Board practice gives us a better chance of walking away with a winner at the end of an appeal. No guarantees, just an improvement in the odds. Wiley@FELTG.com

BIG NEWS: Title 42 Employees Now Entitled to Appeal Removals to MSPB

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By William Wiley

OK, it’s BIG NEWS if you have any employees hired under the authority of Title 42 (rather than under Title 5), the authority that allows agencies to appoint special consultants without regard to any civil service laws. 42 USC 209(f). Since the cooling of the Earth, the Board and OPM have concluded that this language means that a Title 42 employee is without civil service protections and may be removed summarily without Board appeal rights.

Well, no more. As of Wednesday last week, if an agency fires a Title 42 employee, that employee gets to file an appeal with MSPB, just as would a regular Title 5 employee who has more than a year of service. Lal v. MSPB, Fed. Cir. 2015-3140 (May 11, 2016). And as we read 5 USC Chapter 75 (adverse action procedures) and 5 USC Chapter 43 (unacceptable performance procedures), agencies will be required to use those procedures to effectuate a Title 42 removal. OPM has room for a say as to the coverage of Chapter 43 for Title 42 into the future, but as their regulations are currently written, our best legal guess is that there’s coverage unless there’s a regulatory change.

The court’s reason in large part was straight out of Law School 1-A. Title 42 says that individuals may be “appointed” under Title 42 without regard to the civil service laws. A different statute gives agencies in another context when dealing with certain non-Title 42 employees the authority to “appoint[ ]…and remove[ ]… without regard to the provisions of title 5…” Reasoning that Congress saw a significance in the latter situation to include the authority “to remove” and that Congress did not specifically include the authority “to remove” in Title 42, Congress did not intend for Title 42 removal authority to be without regard for civil service protections.

Most Title 42 employees work in HHS, with a few scattered among other agencies (e.g., EPA). Therefore, most of the civil service is unaffected by this decision. However, for those readers who employ Title 42 employees, it is a new day. Whether it is a bright new day or a dark one, we leave that up to you to decide.

Here at FELTG, we teach supervisors how to hold Title 42 employees accountable for their performance and conduct just as we teach how to do that for Title 5 employees. We hope you’ll consider us if you now feel you would benefit from a little procedural education. Wiley@FELTG.com

Prior Discipline Continues to Lose Respect at the Board

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By William Wiley

My initial training in this business was in July 1977. Back in the day, the old Civil Service Commission ran weekly academies year-round in Washington, DC, with an academy devoted to each major personnel discipline: classification, staffing, training, labor relations, and employee relations. To practice independently in your chosen field, by CSC policy, you had to attend the academy and pass the final test for your discipline. If you attended and did not pass the final exam, you were sent home without the ability to work independently, and had to return to retake the program at a later date. Serious stuff.

One of the principles I remember clearly being taught in my employee relations academy was that of progressive discipline. Although not mandatory, employing progressive discipline was presented to us as a way to give an employee a fair chance to prove whether she could obey rules and pull her weight as a federal civil servant. And if she could not, progressive discipline laid a good foundation to show that the agency had been fair to the employee, and that the employee continued to be a problem.

The concept of progressive discipline is exceedingly simple: first offense = reprimand, second offense = suspension, and third offense = removal. Of course, there was room for an agency to decide to do something less, but that would be up to the agency’s discretion. The philosophy of progressive discipline was to initially use a warning (a reprimand) to try to correct the employee’s behavior. If the employee engaged in a subsequent act of misconduct, he was demonstrating that the reprimand did not work, because if it had worked, he would have obeyed the rules and not have engaged in more misconduct. As the reprimand didn’t work, the supervisor was empowered to move up to more serious discipline in an attempt to correct behavior, and that’s where the suspension became an appropriate penalty – a negative reinforcement of taking away pay to motivate rule-obeying conduct.

Then finally, if the employee engaged in yet another act of misconduct subsequent to the suspension, with rare exception, the last stage of discipline was removal. By engaging in a third act of misconduct, the employee was demonstrating that a suspension was inadequate to correct the bad behavior. If a reprimand didn’t work and a suspension didn’t work, the only option left was a removal. As I remember one instructor putting it so eloquently, “The government does not have to retain in its employment an individual who does not respond to discipline.”

And to me, that makes perfect sense if we think of discipline not as punishment for the sake of punishment, but as a tool for correcting behavior. If it doesn’t satisfy the objective of correcting behavior, then the non-responsive employee can go work elsewhere. The civil service deserves rule obey-ers, not rule breakers. That philosophy explains why agency penalty tables list only three offenses. Because in most cases, by the third offense the employee has demonstrated an inability to be corrected, and won’t remain employed any longer where he would get a chance to commit a fourth or fifth offense.

Unfortunately, today’s MSPB didn’t attend that academy. As far as I can tell, the Board expects an agency to tolerate indefinitely an employee who does not respond to discipline. If not indefinitely, it hasn’t given us any clear signs as to when enough is enough. Take, for example, MSPB’s recent decision in Ballard-Collins v. Navy, SF-0752-13-0617-I-1 (2016)(NP). In that case, the appellant three years previously had been suspended for 7 days, then later that same year, had been suspended for 14 days for subsequent misconduct. You would think that by those two actions, the employee would have been given a fair chance to learn that misconduct would not be tolerated; i.e., to correct her behavior.

Well, you would be mistaken. Even after these two suspensions the appellant committed yet another offense (disrespectful conduct) and was fired. On appeal, although the Board characterized the disrespectful conduct as a serious offense – particularly so because the appellant was a team leader – it mitigated the agency’s removal to a five-day suspension.

No kidding. Even though the appellant had demonstrated that suspensions don’t work on her to get her to correct her behavior, even after losing 7 and 14 days of pay as negative reinforcement, MSPB somehow reached the conclusion that maybe a 5-day suspension would get the employee to obey the agency’s rules.

Well, that’s just crazy; crazy IF you believe that an agency should not have to tolerate a rule breaker. You see, suspending the employee hurts the agency as it does the employee. The employee loses pay, and the agency loses the services of the employee for the duration of the suspension. The old Civil Service Commission gave us an end to this problem by teaching that ours is a three-strike game. The Board, on the other hand, gives us no clear guidance, effectively saying that an agency may have to tolerate a misbehaving employee indefinitely, suspending over and over again, regardless of the lack of effectiveness of the suspensions to correct behavior and the loss of productivity the agency suffers.

You want more crazy? I got more crazy. When coming up with a 5-day suspension, MSPB used this reasoning:

  1. The prior 7-day suspension was for discourtesy. The prior 14-day suspension was for failure to follow instructions.
  2. This last act of misconduct was properly characterized as discourtesy. Therefore, we have a second act of discourtesy.
  3. The agency’s penalty table provides for a range of penalty for a second offense of discourtesy to be a one to five day suspension. Therefore, a five day suspension is warranted.

Notice how the Board ignored two critical aspects of this “second offense”:

  • The agency issued a seven-day suspension for a first offense of discourtesy. One would think a second offense of something warrants more severe discipline than that administered for a first offense.
  • The Board COMPLETELY IGNORED the fact that in addition to the prior suspension for discourtesy, the employee had been suspended for 14 days for failure to follow instructions. It’s as if the Board is saying that when we consider prior discipline, we are to consider only prior discipline for misconduct in the same category as the most recent misconduct. Well, that’s just ridiculous. If we go down that dark road, an employee would have to be disciplined progressively for each category of misconduct. In a typical penalty table, that would be dozens and dozens of categories. Expecting progressive discipline in each of them could add up to double that many of suspensions before we had finally plugged all the holes and were able to eventually fire the multitasking bad employee.

Ask yourself this philosophical, but critical, question: Which of the following makes for a better government?

  1. A civil service in which employees who do not conform their behavior to agency rules after two formal attempts at correction normally can be removed.
  2. A civil service in which employees who commit acts of misconduct can retain employment indefinitely regardless of the number of attempts at correction as long as each act of misconduct is of a different nature from the other.

This break from the old school three-strikes-and-you’re-out approach defies common sense and leaves us without any framework in which to assess whether prior discipline carries any weight when selecting a penalty for a particular current act of misconduct. This is exactly the kind of decision that makes it appear that the Board is overly protecting employees at the expense of an efficient, orderly, civil service discipline system. This was a third offense. The agency had administered two significant prior suspensions. The idea that only a five-day suspension is warranted as a maximum reasonable penalty now is unreasonable and strikes at the heart of the concept of federal employee accountability. Wiley@FELTG.com

Attorneys Should not Make Management Decisions

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By William Wiley

Here at FELTG, we do a LOT of training for supervisors. We really enjoy helping front line managers learn the procedures the law provides for dealing with poor performers and civil servants who don’t follow the rules. And during those sessions, we hear a LOT about what supervisors think about their legal and human resources support staffs.

One of the more common comments we get, and perhaps the most infuriating, is this: “Bill, I’d like to do it that way, by my solicitor won’t let me.” Man, oh man, does that comment make us cringe. With rare exception – and I mean really rare exception – the authority to hold agency employees accountable is delegated to the line managers who have been hired to run the place, not to the lawyers who are responsible for providing advice. Where do lawyers (or human resources specialists) get off telling line managers what to do when it comes to initiating discipline and performance removals?

Perhaps it started in law school, when the attorney-in-training took all those management classes.

Ha, ha, ha. That’s a little joke. Nary a law school in the country requires that its students take courses in how to manage a federal agency. OPM doesn’t have any minimum training requirements for staff attorneys to take management classes once hired into government. So your typical agency attorney, though perhaps highly competent in the skills necessary to be a lawyer, has zilch formal education in the science of management.

Well, maybe those skills necessary to be a highly competent attorney are easily transferrable to the field of agency management. Perhaps whatever it takes to be a good lawyer is also what it takes to be a business manager.

No, they aren’t. In fact, the skills necessary to be a good lawyer are sometimes antithetical to what it takes to be a good manager. Take risk-avoidance for example.  Lawyers are trained to do whatever it takes to reduce the risk involved in an action, to consider every possible bad outcome, no matter how remote, and to include language in the contract or argument in the brief to cover that possibility. In the world of federal employment law, that means a lawyer would be likely to want to avoid the possibility of losing an appeal, even if that possibility was slight.

In the business world, hesitation can cost a company a lost opportunity. Nobody wants to lose, but risk of loss in the management of an agency is sometimes worth the benefit of the gain that can result from success. When I was a baby in this business back in the ‘70s, I remember trying to talk a Navy commanding officer into settling an appeal because if we were to lose, it might cost the Navy “over ten thousand dollars.” He gave me one of those over-the-spectacle looks that seasoned people give to newbies and said, “Young man [I knew I was about to be put in my place when he started off with that], last month I spilled $30,000 worth of fuel refueling my jets. Do you really think that I care about another ten grand?” He was making a business decision for which I did not have a perspective. And that’s exactly what he was supposed to do.

Last year, I was lassoed during a break in one of our open-enrollment seminars by an attorney who worked in an agency for which FELTG recently had been doing a lot of onsite supervisory training. She was upset that we were teaching her agency’s supervisors what accountability options were available without considering “the culture” of the agency. In other words, we were telling supervisors what they could do, and her office (the Office of Culture, I’m guessing) didn’t want them to know what they had the authority to do.

On another occasion when I was speaking to a group of agency attorneys in an onsite course for an agency, I stressed (as I always do) how important it is to get the employee out of the workplace once a removal has been proposed. One of the attorneys in the group promptly informed me that “We don’t do that here” because “it would look bad in the papers” to have an employee on administrative leave during the 30-day notice period. She was making her decision on what “we do” based on her view as an attorney safely ensconced down the hall in her office behind a locked door. The poor line manager, who should by all rights be making the decision, would be the one sitting around the corner from the about-to-be-terminated employee, directly in the line of fire, should the employee snap and become violent.

Line managers should be making line management decisions, not agency attorneys and human resources specialists. Our job is to provide advice and counsel, not to direct and tell. The concept of “HR won’t let me do that” should disappear from the workplace. We are a service entity, not a line component. If we are advising a line manager who wants to do something we think to be bad for the agency, our job is to run that issue up the chain of command of that manager, not to interject our own style of management into our client.  And I stress the word “client” as that should be the nature of our relationship with the manager.

Think of yourself in private practice. How much income do you think you would have if business people came to you for your legal counsel and you instead took it on yourself to tell them how to run their business and how to make business decisions? If you want to decide what “we do” around here or what “the culture” should be, start a business and become accountable for your decisions. Until then, if you are an agency advisor – attorney or otherwise – do America a favor. Fulfill your consultant role to the best of your ability and allow line managers to make the decisions that are their role to fulfill.

Take it from someone who has been on both sides. It’s easy to tell someone what they cannot do. It’s much harder and more important to help them do what they’ve decided to do. Wiley@FELTG.com

Accommodating the Disabled Commuter

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By William Wiley

One of the confusing areas of disability accommodation law is the issue of how far does an agency have to go to accommodate a disabled employee who cannot travel to the workplace each day to do his job. A major reason that this is confusing is that several federal courts have reached a conclusion different from that of EEOC. According to the rationale of some circuits, if the employee cannot get herself to the workplace, she does not meet the definition of “qualified” because commuting to work is an “essential function” of every position. Therefore, the employer need do nothing regarding the accommodation of her commuting problem. On the other hand, EEOC has taken the position that the ability to commute to work is NOT an essential function of many positions, and that therefore a government agency DOES INDEED have to attempt to accommodate the commuting problems caused by an employee’s disabilities.

EEOC’s approach causes significant problems for the federal employer. When confronted with a demand for accommodation of a commuting limitation from a disabled employee, the agency has to prove that the accommodations required regarding commuting are not possible (are an “undue hardship” if you’re in to exacting legal language). If the employee’s work can be done primarily from his home, then part-time or full-time flexiplace often is the accommodation that satisfies EEOC’s expectations.

But what about the situation in which there is no claim that the employee has to physically be at the worksite to get the job done? If the guy can’t drive, walk, or take public transportation, does the agency have to send a driver to transport him from home to work?

Fortunately, we now know that the answer is “no.”

In a recent case, EEOC had to deal with a complaint in which the disabled employee claimed a right to accommodation of his commuting problems caused by a constellation of medical infirmities when his agency changed his work location two days a week to a facility 30 miles away:

  • Sleep apnea
  • Spinal cord injury
  • Monocular vision
  • Carpal tunnel syndrome

When the agency failed to accommodate the employee’s disability, EEOC found no disability discrimination based on the following:

  1. The change in work locations was based on legitimate management reasons.
  2. Non-disabled employees were adversely affected by the change as well as was the disabled complainant.
  3. The agency considered the complainant’s accommodation requests “seriously and timely.”
  4. The agency need not provide a driver for the complaint to commute twice a week because doing so would require the expenditure of funds not provided for by Congress. Federal agencies are not permitted to use appropriated funds to get an employee to work. Describing the complainant’s commuting costs as personal expenses, the Agency asserted that they were not payable from appropriated funds, absent specific statutory authority and it relied on 17 Comp. Gen. 1 (1947); 16 Comp. Gen. 64 (1936). The Agency also argued that 31 U.S.C. § 1344(a)(1) limited the use of appropriated funds for passenger vehicles to “official purposes.”

More broadly stated, the Commission held specifically that the agency “had no responsibility to provide transportation to Complainant for his commute.” Perhaps EEOC has held this before. However, it cites to no specific prior holding directly on point, and this may be the first time it has so held. For those of you in the business of dealing with employee requests for disability accommodation involving their commute, this one might be a decision worth remembering: Gerald L. v. DVA, EEOC No. 0120130776 (2015). Wiley@FELTG.com

Sometimes I Just Want to Sit Down and Cry

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By William Wiley

Here at old FELTG, we get some pretty attenuated questions; e.g., “But Bill, what if the individual is actually the hybrid spawn of a space alien and married to a retired federal employee? Is he still entitled to survivor benefits EVEN THOUGH HIS ALLEGIANCES GENETICALLY SPEAKING CLEARLY ARE TO ANOTHER SOLAR SYSTEM???”

Yes, there are some really far out issues in the field of federal employment law, issues for which any answer is just an educated guess. And then, every now and then, we get a question about something so basic, so fundamental to our business, that it makes us consider giving up the fight. How can we maintain a protected civil service when some of the people who are supposed to know, don’t know even the fundamentals? Recently, we got a question from a FELTG-Friend who is trying to do the right thing, but is catching a load of resistance from some smarty-pants up the chain of command who thinks he knows better. Here’s the question and our response.

Question:

Dear FELTG – I am getting pushback on whether the proposing officials are required to conduct a Douglas Factor Analysis.  We have been doing that for a long time and I believe you have taught this in your classes.

5 CFR 752 states, (b) Notice of proposed action. (1) An employee against whom an action is proposed is entitled to at least 30 days’ advance written notice unless there is an exception pursuant to paragraph (d) of this section. The notice must state the specific reason(s) for the proposed action, and inform the employee of his or her right to review the material which is relied on to support the reasons for action given in the notice.

Your thoughts?

Our Answer:

Dear Concerned Reader – Always nice to hear from you. However, it saddens (and angers) me greatly that after all these years, you would get pushback on something this basic. Here’s the deal.

  1. Thirty-five years ago, back in 1981, the Douglas decision itself said that the Douglas factors should be included in the Proposal Letter (thereby requiring the proposing official to do a Douglas factor analysis). Here’s a direct quote from Douglas:

Moreover, aggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors …

The “advance notice” is what we call the proposal latter, so there it is in black and white. Occasionally, I run into a practitioner who wants to argue that only the “aggravating” Douglas factors have to be included in the proposal letter, not ALL of them. Well, that’s correct. But do I really want to get into a fight about whether a particular factor is aggravating or mitigating? For example, is an eight-year length of service aggravating or mitigating? The smartest thing to do is include all the Douglas factors in the proposal, thereby satisfying the mandate in Douglas without the risk of mistakenly calling something mitigating when a judge decides it was actually aggravating.

  1. Due process requires that we notify the employee why his removal is being proposed (thereby allowing him to defend himself), then make the decision. That notice goes into the Proposal Letter, followed by a decision on the proposal in the Decision Letter. In 2009, the Board said that it was OK for the Decision Letter to contain penalty factors not in the Proposal Letter, reasoning that due process did not require prior notice of facts related to the penalty, only to the actual misconduct. Well, the Federal Circuit Court of Appeals thought that was stupid and reversed the Board, thereby ruling that the employee must be put on notice of any penalty factors on which the Board is going to rely in making its decision. Ward v. USPS, 2010-3021 (Fed. Cir. 2011). If you think about it, it just makes sense. The employee should be allowed to defend himself, to correct the record BEFORE a decision is made. If the Proposal Letter does not contain the Douglas factors, and the Deciding Official relies on an incorrect Douglas factor (e.g., mistakenly believing that the employee has poor performance or did not apologize for the misconduct), the employee has been denied the opportunity to defend himself.
  1. Given that Douglas requires that the penalty factors be in the Proposal Letter, and that Ward prohibits the Deciding Official from considering any penalty factors not in the Proposal Letter, here’s the best practice that we now teach:
  • The Proposal Letter analyzes all 12 Douglas factors in great detail using an attached Douglas Factor Worksheet.
  • The employee responds and defends herself.
  • The Deciding Official considers only the proposal and the response in making his decision.
  • If he agrees with the Douglas factor analysis of the proposal, he says nothing extra about the penalty assessment. Instead, the decision letter says something like this: “I have considered the penalty assessment factor analysis contained in the Proposal Letter, and I concur.” That way, he avoids a Ward mistake.
  • If he disagrees with the assessment of the Douglas factors in the Proposal, or wants to consider other penalty facts that were not in the proposal, the safest thing for him to do is to notify the employee of these extra ruminations, and allow her to respond. Otherwise, he runs a risk of a due process violation. He may get away with not taking this extra step, but I don’t believe in taking chances when I can avoid them. I am a careful man, at least when it comes to defending a removal.

Hope this is helpful. Again, I cannot stress how much it bothers me that someone in a position to know better is giving you push back on an issue this basic. Our famous MSPB Law Week seminar is coming up in June in San Francisco. Maybe give the guy FELTG’s toll-free number so we can register him: 844-at-FELTG. Lord knows he needs it, and so does our great country.

(In a related vein, separate from this emailed question, last week in one of our FELTG seminars, a participant asked me if her agency was making a mistake with the Douglas factor analysis. As she explained it, the Proposal Letter policy in her office was simply to identify each of the 12 factors as either “Aggravating” or “Mitigating” without any detail as to the facts relied upon by the Proposing Official to reach that conclusion. I almost cried. How anyone in our business could possibly think that relying on secret facts to determine a penalty satisfies the Constitutional requirement for due process is simply beyond my ability to grasp. Friends, I realize that it would be additional work. But we need practitioner certification. And we should allow only Certified Practitioners to make these sorts of decisions. You don’t learn this stuff in law school. You can’t possibly learn all that needs to be learned by on-the-job experience because you won’t take enough adverse or performance removals in a career to cover all the bases. For the sake of our Great Country (or our soon-to-be great again country, depending on your politics), please get trained. And, feel sorry for people who are not.) Wiley@FELTG.com

Learning Points Can Be Good or Bad

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By William Wiley

Several months ago, I wrote an article regarding a Board case in which the agency won the appeal in spite of there being significant mistakes in the proposal and decision letters, McCook v. HUD, MSPB No. SF-0752-14-0389-I-1 (August 3, 2015) (NP). I learned a couple of things from publishing that article:

The Good Learning Point: If you’re trying to get folks to read your articles, mention their colleagues by name.

The Bad Learning Point: Readers don’t always understand what we intend to say in the articles we publish. If you need to re-read the McCook article, you can find it on our website in the September 2015 Newsletter. My intent in the piece was a) to point out that the proposal letter was deficient because it did not specifically address the relevant Douglas factors, b) to highlight that the decision letter was problematic because it mentioned several Douglas Factors not in the proposal, and c) to get the attention of the shakers and movers at HUD (and other agencies) to make some changes so that these sorts of basic mistakes don’t occur again. The only potential shakers or movers I could identify in the Board’s decision were the three attorneys who represented HUD on appeal. My hope was that some reader would know them, point out to them that in my opinion attaching a Douglas Factor Worksheet to the proposal would have taken care of the difficulties in this case, and that HUD would take steps to make sure that things were done better the next time.

Man-oh-man, did I get that wrong. Instead of my hearing from someone at HUD that their procedures now would ensure that a Douglas Factor Worksheet is attached to every proposed removal letter, I got a long letter from a supervisory attorney explaining the hard work his staff had put into defending HUD in this appeal, and how that should have been the point of my article. I responded to his letter with my explanation of the point of the piece; not being to criticize the legal work his attorneys put forth to defend the agency in the appeal, but to criticize the system that allowed whoever was the (no doubt well-intended) practitioner who drafted the proposal and decision letters to make mistakes that have been mistakes since 1981.

Another Bad Learning Point:  I thought that with a personal clarification of the point of the article, the matter would be put to rest. Perhaps because this was all happening around Christmas week, I was in a particularly optimistic mood. So foolish of me. After receiving my response, the supervisor called me early one morning to tell me the following:

  • People who read the article saw it as a criticism of the legal work done by his attorneys.
  • I should publish his letter to me.
  • He has never read our newsletter before.
  • It is the fault of the managers who signed the discipline letters, not the practitioners who drafted them, that a proper Douglas assessment was not a part of each letter.
  • He does not know of any affirmative steps that have been taken within HUD to make sure that in the future a Douglas Factor Worksheet is attached to every proposed removal.

I was heartbroken. My hope in writing the article was that readers would understand the important of complying with Douglas and thereby avoid the mistakes that were made in this case. Instead, I am told that the article was seen as an unjustified criticism of the legal work done by the agency representatives in this appeal. So let me do the best I can to clarify what we here at FELTG are saying about the McCook decision:

  1. The proposal letter should have had a Douglas Factor Worksheet attached so that the Board did not have to dig around to find the penalty factors in the proposal.
  2. The decision letter should not have referenced ANY penalty factors not in the proposal because that is almost always a violation of due process.
  3. Nothing in this Board opinion suggests that the three agency attorneys who defended HUD in this appeal are anything other than super-duper hard-working lawyers with superior litigation skills.

So, my apologies if my article hurt someone’s feelings or made anyone feel singled out. That was certainly not my intent. We publish our FELTG newsletters to help agencies and those who defend employees know the mistakes that are made in this business and the best practices to protect employee rights. For those readers who do not read our articles that way, who do not see them as helpful but rather as critical, perhaps you shouldn’t read our newsletter any longer.

For those of you who read our articles for legal analysis, best practices, and traps to avoid – stay with us. Yes, we knock MSPB/EEOC/FLRA/OPM/OSC/Congress when they do something we think is bad for America, and we occasionally call out employer agencies that should be doing things better. Heck, we even point out mistakes made personally by one of us who writes or teaches for FELTG. Our newsletter is an instructional tool, not a congratulatory make-you-feel-better column in the back section of your local newspaper.

If you want to learn how to do your job better, here we are with our articles and our courses. Otherwise, we wish you the best of luck. Wiley@FELTG.com

 

Speaking of Jack Ryan

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By William Wiley

In one of the last scenes in The Hunt for Red October, Jack’s with the good Russians in the Red October when Viktor Tupolv, captain of the bad Russians in another submarine, against the wishes of his crew, arms his torpedoes in their tubes before firing them. You see, the reason this is a bad idea is that if the pre-armed torpedoes don’t immediately hit their target, they can circle back and destroy the submarine that initially fired them. Which, of course, is what happens in the movie, thereby destroying the Russian submarine and crew while allowing the Red October to escape to the good old US of A. Just before the pre-armed torpedoes complete their circle and are about to explode the Russian sub, knowing that death is imminent, one of the crew members turns angrily to Captain Tupolev, and says, “You arrogant ass: you’ve killed us!” Then, “Boom,” the end, just like real life is supposed to work.

Right now, you are probably asking yourself “Where the devil is Wiley going with this one? Isn’t this supposed to be a newsletter about federal employment law?” Well, watch this segue, those of you who are faint of heart readers.

Some of you might remember that back in 2010, this newsletter sounded the alarm bell when the two “new” members of MSPB issued three decisions that threw the business of federal employment law for a loop.  Known as The Terrible Trilogy, the cases of Lewis/Villada/Woebcke redefined the importance of comparative penalties in the Douglas factor analysis defending the penalty selection, essentially requiring agencies – for the first time in history – to implement the same penalties for similar misconduct throughout an agency. Since 1981, penalties given to other similarly-situated employees had always been one of many considerations in determining whether a penalty was reasonable. Post-Trilogy, that consideration was raised to a very high level, requiring agencies that fire employees for misconduct to lose their cases and have to reverse the removals if on appeal the employee-appellant could point to other cases like his in which the agency did not implement a removal. Reversal was to become the outcome even if otherwise the employee had engaged in misconduct if the evidence demonstrated disparate penalties.

Man, oh, man, did this reporter have a criticizing fit when The Trilogy was issued. First, it is physically impossible to track all the misconduct within an agency, and then assure that everyone gets the same penalty. Can’t humanly do it because you’d have to know all the MISCONDUCT (not just all DISCIPLINE) within an agency, and somehow centralize all of the agency’s decision making. Second, within weeks, smart agencies realized that discipline within the philosophy of The Trilogy made the most sense if the agency always administered the most severe discipline option available. As a practical matter, an agency could best defend itself if it always terminated for a particular act of misconduct, thereby keeping the bar set high for the next similar acts of misconduct. Doing anything less than removal today could hamstring an agency well into the future for years.

Officially, The Terrible Trilogy remains good law at the Board today. In 2012, new Member Robins wisely dissented from the direction this philosophy was taking, arguing that The Trilogy “attempts to promote a universal consistency in penalty setting, without identifying any legitimate individual interest or broad value under the Civil Service Reform Act that is being promoted.” Boucher v. USPS, 118 MSPR 640 (2012). Unfortunately, Member Robbins is only one vote on a three-member Board, and The Trilogy lives on, despite his disagreement.

Which brings us to appeal decisions released just this month. As most everyone who has had access to the news media these past couples of years knows, our friends at the Department of Veterans Affairs have caught Congressional-Hell because of what has been seen as unaccounted-for gross managerial misconduct on the part of certain senior executives at DVA. So loud has been the outcry that Congress created a law that allows the Secretary of DVA to fire SESers with relatively little due process and a truncated appeal to a single MSPB administrative judge. The goal was to make it easier for DVA to hold its senior leadership accountable by enforcing discipline based on perceived acts of misconduct, with exceedingly little oversight.

DVA has been trying to take advantage of this new law. It has disciplined several SESers within the past 18 months, the appeal results of three of which were released just last week (two demotions and a removal). And guess what: all three were reversed by the Board’s judges, and two of the three reversals (the analysis of the third has not yet been released) were based in large part on the disparate penalty philosophy of The Terrible Trilogy. Yes, charges of misconduct were sustained in both cases. However, even in spite of the proven misconduct, the judges applied The Trilogy, found other employees who in the opinion of the judges were similar-enough to the appellants to warrant the same discipline, and who DVA had chosen not to discipline because the Deciding Official at DVA saw the misconduct of the others to be significantly less harmful. When confronted with such disparity, the judges dutifully applied The Terrible Trilogy and reversed DVA’s demotions of the two individuals. Rubens v. DVA, PH-0707-16-0151-J-1 (2016) and Graves v. DVA, CH-0707-16-0180-J-1 (2016).

Focus on the essence of this situation for a moment:

  1. Congress wants it to be easier for DVA to discipline its senior leadership.
  2. DVA has embarked on an effort to comply with this Congressional mandate.
  3. However, DVA has been frustrated in doing so by MSPB’s Terrible Trilogy philosophy.

As a result of these reversals, it was reported last week that the leadership of DVA is going to try to get its SES appointees removed from Title V of the United States code so that the nasty old MSPB will no longer have jurisdiction over DVA’s attempts to hold its employees accountable . In other words, DVA wants MSPB to go away in large part because of The Terrible Trilogy, the exact cases the FELTG newsletter warned the world about back in 2010. If DVA leadership manages to get Congressional action to move MSPB out of the picture for its SESers, how long will it take for DVA to recognize the huge benefit of no MSPB oversight, and push for legislation that would apply the no-MSPB approach to ALL of its employees? And after that, how long will it be before other agencies see that DVA can hold its employees accountable more easily than can they, and then they will ask for similar MSPB-exclusion from Congress for their agencies?

Captain Tupolev arrogantly launched his torpedoes armed in their tubes, thereby destroying himself and his crew when they circled around. The Board Members at MSPB arrogantly issued The Terrible Trilogy in 2010, mandating that all agency discipline be the same. The Trilogy has now circled around, in the eyes of some allowing senior government managers who have engaged in misconduct to escape accountability for their misconduct. And the result may well be that MSPB becomes irrelevant to government oversight as agencies apply to Congress to be excluded from its jurisdiction. In fact, the day may well come when Congress sees no need for an MSPB whatsoever because of the impediments to accountability that it creates as it decides cases, and the dearth of agencies willing to be constrained by its wacko decisions like The Terrible Trilogy. If that happens, do you know what we’ll all hear in the distance because of what the Board has done to itself?

Boom! Wiley@FELTG.com