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Administrative Juries: Love Them or Hate Them?

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By William Wiley, October 23, 2018

In a previous article, we laid out an alternative dispute resolution mechanism that employees could opt for if offered the option by management. Unlike the traditional ADR process of mediation, this form of ADR requires that the employee waive other rights of redress and resolves the matter permanently at its terminus. We called this procedure an Administrative Jury and promised you a discussion of its pros and cons in a later article. Well, this is that later article.

Instead of a pro/con approach, we’ll analyze the Administrative Jury option from a love/hate approach. These days if you watch cable TV, you will recognize that love/hate has become a very standard way of viewing life these days.

Lovers – There are some groups that are going to love Administrative Juries as an option to the standard redress systems:

  • Employees who want a prompt resolution to workplace disputes. Employees who believe that they have been mistreated will opt for juries to get a quick day in court. Sometimes employees believe that the whole management structure in an agency is a coven of witches and devils. By giving the employee a chance to be heard by a group of coworkers, the grieving employee is bypassing those evil managers and hopefully getting a more neutral, perhaps even employee-biased, decision.
  • Managers who want a prompt resolution to workplace disputes. A pending discrimination complaint against a supervisor can adversely affect the supervisor for years. The Sword of Damocles is a good analogy. It’s like a splinter in your foot until you finally get it out. No more coerced mediation or constructive apologies. No more depositions and responding to document demands. No more being cross-examined by someone trained to make you look like a racist idiot. You get in, you make your best case, and you rest easy and early knowing that you’re going to win more jury decisions than you’re going to lose.
  • Employees and managers who don’t want to spend a lot of money. Years ago, GAO estimated that the cost to the government of an MSPB appeal was about $100,000 IF the removal was upheld. Senior counsel in a big DC law firm can charge above $800 per hour to represent an individual in a complaint or appeal. For some higher ups, that’s not a lot of money, but it is for those lower in the pay scales, the ones that need the help the most.
  • Why coworkers? Because an Administrative Jury is the ultimate in “employee engagement.” Give employees the chance to help decide who gets to work at the agency and you have empowered them to have a significant impact on their daily lives. No longer are they just on the receiving end of whatever it is management wants. You are treating them as adults who have a joint responsibility with management to make the organization function as it’s supposed to function.

Haters – There are other groups who stand to take advantage of the current system and would not want to see anything replace it:

  • Private sector employment lawyers, the ones who make a good living representing employees in the traditional redress systems. They provide a service in which their income is based on how long it takes them to provide counsel to a client. They can still have an income in an Administrative Jury system, but it’s not going to provide enough income to buy a new Tesla every year.
  • Attorneys on both sides who believe that their side is always right, and if they just do enough discovery, examine enough witnesses, and file scintillating briefs written mostly in Latin, they will be victorious. These folks do not subscribe to the old maximum, “Don’t let the perfect defeat the good enough.” They demand that every rock be overturned and will take a case all the way to the Supreme Court to prove to the rest of the world that they are the smartest, more righteous litigant in the case. They cannot accept that a system that produces a good-enough answer quickly can be better for America than a system that produces the “right” answer every time.
  • Employees and managers who believe that they need to punish the other side by dragging it through traditional litigation. Tell me you don’t know employees who intentionally file baseless complaints to coerce management into something, and I will tell you that you haven’t had much experience in this business. Fortunately, these folks are the exception, but they still exist. And they would never opt for a quick resolution via the jury route when they can cause great suffering and pain through traditional redress procedures. They don’t want an answer, they want a fight.

So, there you have it. In three brief articles, a system that could improve the civil service greatly. Hopefully someday someone in a position of power will give this approach a trial. That someone could be you. Pick a component of your organization and set up this option. Try it for a year or so. Have a neutral third party evaluate the results. Then tell the rest of the world how it worked out. Did you know that some of the high-tech companies out here in Silicon Valley near where I work give an award every quarter to the internal organizations who try something outside the box, and fail? They see the value in trying something new even though there is a chance for failure.

If you’re happy with the EEO complaint system we have now, if you look forward to being attacked at an MSPB hearing, if you have nothing better to do in your job other than deal with workplace disputes, then forget these three articles. However, if you believe that there just might be a batter way to run the government, here’s your procedure and now’s your chance. Be brave. Grab the gold ring. And most of all, have fun doing something new. Wiley@FELTG.com

Why Not an Administrative Jury? (Part 2)

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By William Wiley, October 17, 2018

This is the second part of a three-part series.

In a previous article, we explained how the American jury system could be used to demonstrate the differences among three standards of legally required proof:

  • Beyond a Reasonable Doubt: 12 out of 12 jurors must agree (used in criminal cases).
  • Preponderant evidence: 7 out of 12 jurors must agree (used in misconduct removals).
  • Substantial evidence: 4 out of 12 jurors must agree; maybe even just 3 (used in performance removals).

Then, we teased that perhaps this concept could be used to build an alternative dispute system, a system to replace the tedious grievance/appeals/complaint/mediation processes now provided to employees by law or regulation. There are no normal people in the world who think that these processes are perfect, or that they make for a great way to deal with disputes in the federal workplace. You know how I know that? Because that’s how I define normal. If you think the existing systems are wonderful, you are not normal.

So how could this jury-evidence analogy work to be the basis for a fair expeditious system to resolve employee-initiated disputes? We are so glad that you asked. Here are the details of an Administrative Jury procedure:

1 – Workplace disputes arise when management takes or fails to take an action that an employee thinks is wrong. An “action,” for example, can be discipline, a reassignment, or a failure to promote; just about anything that can now be the subject of a discrimination complaint, grievance, or appeal.

2 – Currently, when an employee decides to dispute a management action, he is given access to one of several regulatory-defined redress systems. Those systems usually involve many steps of review, take a long time to play out, and cost taxpayers and the employee basket-loads of money.

3 – As an alternative to these procedures, management could offer employees who want to dispute an action the option of invoking resolution of the complaint by an Administrative Jury. This would be an option for management. Administrative Juries can occur only through mutual consent.

4 – If the employee selects the option of an Administrative Jury, the agency would then convene the jury by selecting 12 agency employees who have previously volunteered and trained to serve in the jury pool. The jurors would be selected at random, except that none could come from the employee’s work unit.

  • “But, Bill, won’t that cost a lot of money? Some of those coworkers might come from far away and the agency would have to pay all that per diem.”
  • Whoever asked this question clearly has no idea what it costs the agency to go through the traditional processes.
  • Travel and per diem expenses for jury members is a drop in the financial bucket compared to the costs of traditional litigation.

5 – The jury convenes in a conference room at 9:00 AM. Each side, management and the employee, gets 90 minutes to speak to the jury.

6 – The party speaking first is the party that has the burden of proof in the dispute:

  • Discipline – Management goes first.
  • Discrimination Complaint – The employee goes first.

7 – Each side can have two Presenters; e.g.

  • In a discrimination complaint, the two Presenters for the employee might be the employee and his attorney. Or, perhaps two witnesses who observed the discriminatory event and who can tell their story to the jury.
  • In a removal action, the agency might choose to have the proposing and deciding officials as Presenters. Or, a human resources specialist and a witness.
  • The parties can have more than two Presenters by mutual consent.

8 – The Presenters speak directly to the jury.

  • There’s no direct nor cross-examination.
  • Presenters can provide documents to the jury members.
  • The jurors can ask questions of the Presenters.

9 – The parties are done by noon and excused. After lunch, the jurors discuss and decide the outcome of the dispute.

  • For a discrimination complaint to be resolved in favor of the employee, seven or more jurors have to find discrimination.
  • For discipline to be upheld, seven or more jurors have to vote to uphold the discipline
  • For a performance removal to be upheld, four or more jurors have to find removal warranted.

10 – The jurors reach a decision sometime that afternoon, the parties are informed before COB, and the next day, we are back to running a federal agency.

“But, Bill, there must be pros and cons to the Administrative Jury process. Why haven’t you discussed those yet?” Because, dummy, we like to keep you coming back for more. Wiley@FELTG.com

Stay tuned to FELTG for the third installment in our Administrative Jury series.  

Scheduling the Oral Response Meeting

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By William Wiley, October 17, 2018

As we all know, once the supervisor serves the notice of proposed removal on the mischievous employee, the employee has the right to make an oral response and defend himself to the deciding official. About 10 years ago, we started recommending that the proposal notice tell the employee the scheduled date and time for him to make that response if he chose to exercise that option.

Recently, we received a question from a webinar participant who had worries about our FELTG approach:

 Dear FELTG,

Our office is trying to decide whether or not to use your example from a recent FELTG Webinar (Watch Your Words: Drafting, Defensible Charges in Misconduct Cases), and rewrite the oral and written reply paragraph in our proposals to include a date for the oral reply.  However, setting a date in advance seems to be somewhat concerning to us.  For example, will the employee feel that the oral reply is a requirement or expectation of management and would we try to schedule the reply within the 10-day comment period (for CBA employees) or just outside those 10 days?  In addition, is there a potential argument of ex parte communication if it appears the Proposing Official secured a meeting time with the Deciding Official?  Does it call into question the extent to which they discussed the proposal?

And our ever-elucidating FELTG response:

If you’re concerned that the employee might believe the scheduled date is an expectation, then word the notice strongly: “Although not a requirement nor expectation, should you choose to respond to the proposal notice, you may do so at 2:00 on Friday, July 13 in the main conference room, Building 101. Some employees exercise this option, others do not.”

As for the date for the oral response, I usually set it on Day 10 or the next business day. I would not set it sooner because of the literal wording of your CBA. For non-CBA employees, I set it on Day Seven or the day after. No reason to set it later.

Absolutely no problem with ex parte between the proposing and deciding officials relative to setting the date. When I’m representing an agency, I usually make the appointment myself with the DO. Even if the PO made the appointment personally, discussions of such logistical matters have never been found to be prohibited ex parte communications. If there’s ever a question as to whether they discussed the proposal, all we have to do is have the PO or DO swear on a stack of CFRs that they did not discuss anything other than scheduling the meeting. No problem at all.

The benefit of prescheduling the oral response is much greater than any risk. Agencies have lost cases because they did NOT pre-schedule and waited for the employee to make a contact to schedule. The typical problem is when set the meeting when it’s convenient for us, but also we avoid any lost-message claims.

Hope this helps. Wiley@FELTG.com

The Ford-Kavanaugh Tell-the-Truth Tool

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By William Wiley, October 9, 2018

The Ford-Kavanaugh Senate hearings had much of our country focused on the concept of evidence and proof. In last week’s FELTG News Flash, we wrote about the problem the Senate has because it is arguing about “proof” without having a definition of what level of proof is relevant. Is there proof that Kavanaugh, who was confirmed and sworn in over the weekend, tried to sexually assault Dr. Ford 35 years ago? How much evidence is necessary for one to conclude that the claim has been proven? Consideration of the nomination to be a Justice on the Supreme Court is effectively a job interview. Do we need any proof at all relative to serious claims of prior sexual misconduct?

We eliminated a couple of options relative to the degree of proof that makes sense in a case like this. Although there are good arguments to the contrary, and although there are those who call for “concrete” evidence and others who call for no evidence at all, we concluded that the best standard to use in cases like this is the standard used throughout most of government regarding personnel matters: preponderant evidence. A preponderance of the evidence is reached when a fact finder concludes that it is more likely than not that a claim is true; e.g., that the facts claimed “probably happened.” Those old scales of justice are just barely tipping in the direction of believing the allegations.

When explaining her vote to confirm last Friday, Senator Collins stated that the standard of proof she was using was whether it was “more likely than not” that Dr. Ford’s claim regarding the sexual assault was correct. Which leaves us with deciding who is more likely to be the more truthful about what happened at that teenage drinking party 35 years ago. Did a drunken Nominee Kavanaugh attempt a sexual assault as Dr. Ford now claims at the 100% certainty level? Or, as Judge Kavanaugh asserted forcibly and with absolute certainly in the hearing, is the correct answer that he did not do it?

In other words, which of the two possible scenarios adopted by Senator Collins and several other Senators is more likely to be correct?

1. Kavanaugh sexually assaulted Ford at that high school party and is lying about it now so that he can be appointed to the Supreme Court (or is forgetful).
2. Someone other than Kavanaugh sexually assaulted Ford that night and she mistaken as to who her attacker was.

Many “experts” and Senators argue that we cannot conclude that the attack happened because there is no evidence beyond Dr. Ford’s claim. Well, that’s not exactly accurate. There indeed is evidence beyond the claims of Dr. Ford. It might be fair to say that the evidence does not amount to proof if one is using a higher standard of proof than preponderance. However, if we are using the widely accepted standard of preponderant evidence, MSPB gave us a tool over 30 years ago to assess the evidence in a he-said/she-said situation such as this one. Based on the case in which the Board defined this truth-telling instrument, that tool is known as the Hillen Factors.

You see, in civil service law, it is somewhat common to have two witnesses testify to two diametrically opposed sets of facts. This is especially true in claims of sexual misconduct. Many such situations involve a he-said/she-said conflict in testimony, simply because most acts of sexual misconduct occur in private, involving only two witnesses. If the Board were to require corroborating evidence in each of those claims, many perpetrators would go unpunished for lack of “concrete” evidence that the misconduct occurred. Appreciating the unfairness of such a situation, and acknowledging that the “probably” proof standard was appreciably lower than the standard needed to throw somebody in jail for a crime, the Board laid out the Hillen Factors as a guide to its judges as to how to assess evidence, and as an instrument for parties to an appeal to use to prove their claims.

Now, you get to be a US Senator (or Fox/CNN talking head, if you see that as a better job). Consider each significant Hillen Factor below relevant to what you know about each witness. Answer the questions, fill in the blanks, and then you can decide who’s telling the truth:

Hillen Factor
Kavanaugh
Ford
Reputation for honesty
Has lied previously?
Has lied previously?
Bias or lack thereof
Reason to lie?
Reason to lie?
Inherent improbability
Statements reasonable?
Statements reasonable?
Demeanor
Calm and straightforward?
Calm and straightforward?

It is fair to say that there is not a lot of evidence to support either witness. However, using the preponderance of evidence standard, there does not need to be a lot of evidence for there to be proof. There just needs to be a little bit more one way or the other, enough to slightly tip the scales of justice.

You get to be the judge. Decide where the Hillen analysis takes you. You and I might reach a different conclusion, but we cannot say that there is no evidence. There are always the Hillen Factors to help us get there. Without them, victims of one-on-one attacks will never receive justice. Wiley@FELTG.com

Civil Service Law and Kavanaugh

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By William Wiley, October 2, 2018

As I watched the Ford-Kavanaugh Supreme Court Justice nominee hearings recently, I was struck by the lack of standards for the process. In case you’ve been in a cave for the past week, the issue of the hearings was whether nominee Kavanaugh had engaged in sexual misconduct with Dr. Ford when they were both teenagers some 35 years ago.

The scene was riveting. Dr. Ford testified consistently and fearfully for five hours as to her memory of a party at which Brett Kavanaugh tried to sexually assault her. Nominee Kavanaugh testified loudly and angrily about how unfair the nomination process had become. Dr. Ford swore that she was 100% certain that the attack occurred as she had described it. Judge Kavanaugh swore that it did not. A classic he-said she-said situation.

Subsequent to the two testimonies, the Senators and media pundits were flummoxed, emotional, and all over the place as to what to do. Who was telling the truth? Where’s the proof either way? THERE IS NO PROOF! OH, YES THERE IS!! Such anger, hostility, and bewilderment as to what really happened that night. Geez, you’d think that the future of America was at stake or something in what is really just a personnel matter.

The more I heard the Smart People talk, the more it became clear to me that our civil service system is designed to determine the truth much better than what the members of the committee and the public commentators are doing.

First, there’s the matter of exactly what does “proof” mean? That concept was thrown around a lot, and it certainly is the heart of the matter. But if you listened closely, you came to realize that there was no generally accepted definition of the concept of proof applicable to the event at issue at the hearing.

Those readers who have attended our civil service law seminars know that there are three levels of proof applicable in personnel matters in the executive branch:

Substantial Evidence. This is the lowest burden of proof in a federal personnel situation. Most commonly, we use it when deciding whether an agency has proven that a poor performer should be fired. A layperson might say that its meaning is that “maybe” the employee was a poor performer, although reasonable others might disagree. Hard to get lower than that.

Preponderant Evidence. This is the burden of proof most commonly used in personnel situations because the most common personnel situations involve discipline and discrimination matters. In these sorts of cases, the agency or the employee prove their case if they can show that “it is likely” that the claims are valid; e.g., it is likely that the employee engaged in the charged misconduct that was the basis for the removal.

Clear and Convincing Evidence. The civil service laws have reserved this highest proof burden in personnel matters for the most beloved group of federal employees: whistleblowers. If an agency fires a whistleblower, it must leave the judge with a “firm belief” that the misconduct occurred, not that it just “probably” occurred as the preponderant level would suggest. The courts have defined this as a “heavy burden.”

Just think what kind of difference it would make in the Ford-Kavanaugh controversy if the Senate would simply decree what the burden of proof was for Dr. Ford’s claims:

  • If substantial proof is all that is needed, the White House had better start looking for a replacement nominee. I think that few clear thinkers could deny that the event at the party 35 yeas ago “might’ have happened. Dr. Ford’s memory seems burned into her brain, graphic in detail, and consistent in description. No, we can’t say that for sure it happened, but that is not the evidence standard when we say that the proof expectation is only substantial.
  • If clear and convincing proof is necessary, Nominee Kavanaugh can start getting fitted for a nicer robe. Some of us might really want to believe Dr. Ford out of compassion for her situation and deep sympathy for someone who has so obviously been traumatized. But aside from those feelings, to my read it is difficult to say that the objective evidence has satisfied the “heavy burden” requirement.
  • If preponderant proof is necessary, then we have to decide who is telling the truth: Ford or Kavanaugh.

And, of course, there’s the rub. Senator after Senator, talking head after talking head, has whined and bemoaned that Dr. Ford cannot be believed because there is no corroborating evidence. It’s just her word against his. In the mind of the uninitiated, without corroborating evidence, we cannot have proof at the preponderant level.

MSPB had a similar problem back in its earliest years as an adjudicating body. A number of cases arose in which the removal on appeal hinged on a determination as to which of two witnesses was telling the truth. Some of the Board’s judges (“presiding officials,” back in the day), tried to dodge the bullet by ruling that as they could not determine who was telling the truth, the preponderant evidence level had not been reached. Well, the Board members would have none of that. They reminded the judges that they were being paid to conclude who was being truthful and who was not. So, they remanded those cases to the bullet-dodging judges and told them to do their jobs of adjudicating. In doing so, the Board created a tool that the Senators could very well use today to make the credibility call between Ford and Kavanaugh.

We’ll describe and apply that tool in a later article. We will no doubt be too late to help with this particular nomination, but maybe the next time something like this comes along, the more clear-headed Senators will find it more useful than gut-based truth-determination.  Wiley@FELTG.com

Homicide in the Workplace

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By William Wiley, September 25, 2018

I’ve always been a worrier. Even in my class picture from the second grade, you can see that I have a lot on my mind and the weight of the world on my shoulders. There are so many rules in life and someone has to be concerned that we all follow them. Even at the ripe old age of seven, I somehow knew that would become my mission in life.

These days, one of my recurrent worries is for the safety of those of you in our FELTG Nation. Did you notice last week that within 24 hours, there were two (2) (!!) workplace shooting sprees? As was reported in the Washington Post, on Thursday, a Rite Aid employee in Maryland entered her regular work space, shot and killed three coworkers, wounded three others, and then shot and killed herself. The day before, an employee of a Wisconsin software company opened fire in his workplace, wounding three coworkers before killing himself. The Bureau of Labor Statistics estimates that every Monday through Friday, every week of the year, two people are killed in a workplace by a coworker. These recent shootings will become part of those statistics in next year’s report.

I think it’s fair to say that the shooters in these two situations must have been under a lot of stress. Happy employees don’t usually open fire on people they work with. The Rite Aid employee was described by coworkers as “normally, a nice person.” There must have been something very stressful that pushed her over the edge.

Think about your federal workplace for a minute. Which of the following events do you think would be the most likely to drive one of your coworkers to kill somebody?

  1. Having someone steal your afternoon snack from the lunchroom refrigerator.
  2. Receiving a “Fully Satisfactory” performance rating when that no-good employee next to you got a rating of “Exceptional.”
  3. Having your boss propose to upper management that you be fired.

I will yield that any one of these events could result in a fragile person reaching for his Glock. Those afternoon snacks can be very important. However, I think we would all agree that, relatively speaking, receiving notice that you are about to lose your job has to be one of the most stressful events that might occur in a government workplace.

Acknowledging that stress is often related to workplace violence, and that a proposed removal is just about the most stressful event one would expect in a government agency, which of the following options do you think that an agency should engage in when proposing to fire an employee?

  1. Leaving the employee to perform his regular job for a month, where he has access to all those important government documents you keep locked away on your hard drives and daily contact with multitudes of coworkers and agency clients;
  2. Hiring an armed guard to accompany the employee for a month while he performs his regular duties; or
  3. Removing the employee from the workplace just as soon as you give him the proposed removal, barring his return by confiscating his government credentials, and blocking him from accessing the agency’s computer system from his home computer.

If you did not select number three, above, you are either more brave or more foolish than you should be. As Hamlet would tell you, “Get thee to a nunnery.” There’s safety there and you cannot reproduce.

In December 2016, Congress passed a law that allows supervisors to immediately remove employees from the workplace on the presentation of a notice of proposed removal. As a separate law requires that the employee be paid for 30 days subsequent to a proposed removal, Congress provided that the employee’s pay status in this situation would be paid Notice Leave. To invoke this Notice Leave period and remove the employee from the workplace, the agency has to certify that doing so was the best option of those available, and that NOT placing the employee on Notice Leave “jeopardizes a government interest.” I think it’s fair to say that keeping employees alive and avoiding a potential workplace shooting promotes a nice valid “government interest.”

When the law became effective in December 2016, OPM was given 270 days to issue regulations. Unfortunately, some agencies took the incorrect position that they could not utilize Notice Leave until OPM issued its regulations. In those agencies, employees are being kept in the workplace after notice of a proposed removal, endangering lives and property for no good reason. If OPM would just issue regulations that say that keeping an employee in the workplace after notice of a proposed removal by its very nature “jeopardizes a government interest,” then the potential for death and mayhem could be reduced substantially because agencies throughout government would implement Notice Leave routinely.

Well, the statutory deadline for OPM issuing regulations was a year ago this week. Happy anniversary, I guess. For reasons unfathomable to those of us interested in the safety of the civil service, this delay is an abomination. The comment period for OPM’s proposed regulations closed in the summer of 2017. It already has all it needs to issue final regulations and take a strong step toward protecting federal employees from a stressed-out coworker. Somewhere in that big building known as OPM headquarters – 1900 E Street NW, Washington, DC – sits a desk with the draft final regulations awaiting action. Somebody in that organization has the ability and the authority to move these regulations along, to take a major step toward reducing the chance of a newspaper story about a workplace shooter in a federal building.

If you happen to know who that somebody is, please let him or her know that this is life and death stuff. These regulations could save a life. Your life. And maybe even your contractor’s life (me). Help this young man in the picture above change his frown to a smile. When you’re in the second grade, you never imagine that a federal agency just doing its job could make you happy. Wiley@FELTG.com

MSPB Nominees no More

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By William Wiley, September 20, 2018

Dear FELTG Nation-

It is with a heavy heart that we inform you that our super-secret internal sources report that the Senate Homeland Security Committee has advised the White House that it will not act on the nominations of the three new members of the US Merit Systems Protection Board before the end of the current session. That means that the nominations will be returned to the administration without a vote and the nomination process will have to begin all over with a new Senate in January.

Our FELTG unofficial account tells us that we are now up to about 1,300 pending appeals, ready to be issued, with back pay accruing every day. By next year, we will be in the 1,600s.

Add to this that the current remaining member, Acting Chairman Mark Robbins, turns into a political pumpkin at midnight on March 1. His term will expire, and he cannot be renewed or held over any more. Unless a miracle occurs in February, on that date, the Board will be without any members for the first time in history.

Any agency’s demise diminishes me, because I am involved in the civil service; and therefore, never send to know for whom the nomination folds; it folds for thee. Wiley@FELTG.com

Why Not an Administrative Jury?

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By William Wiley, September 19, 2018

This is the first part of a three-part series.

In our FELTG seminars, we sometimes have to explain the difference between the two burdens of proof relevant in our business of civil service law: substantial and preponderant evidence.

To fire someone from a government position for misconduct, we have to support the action by a preponderance of the evidence. To fire that same person for poor performance, we need support the action by only a substantial evidence, a lower burden of proof.

Our lucky friends at the VA have the blessing of needing only substantial evidence.

Federal regulations define preponderant evidence to mean that there is enough proof to conclude it is more likely than not that the employee engaged in the charged misconduct and otherwise deserves to be fired. 5 CFR 1201.56(c) and 5 CFR 1201.4(q). For substantial evidence, an adjudicator has to conclude that a reasonable person might conclude that there’s enough proof to warrant removal, not that a reasonable person necessarily would conclude that removal is warranted. 5 CFR 1201.56(c)(1) and 5 CFR 1201.4(p). In comparison, the burden of proof required to throw somebody in jail for a crime in our country most of us know is evidence beyond a reasonable doubt.

Yeah, these are nice lawyer terms. Lawyers love to dance around on the head of a legal pin arguing what these terms mean. But what do they mean in terms that a normal person would understand? Well, here at FELTG, we’ve come up what we think is a pretty darned good analogy that anyone can understand. Perhaps not as eloquent as the regulatory definitions, here’s how we see the difference among the three.

Beyond a Reasonable Doubt:  This one is easy. In most every state on our country and in the federal courts, to find someone guilty of a capital crime, 12 jurors need to agree that a crime has been committed. If 1 of the 12 disagrees, we do not have evidence beyond a reasonable doubt. Therefore, we can use 12 jurors as a benchmark for the other burdens of proof.

Preponderant Evidence:  We’re looking for a more likely than not standard using our jury as an avatar. Given that 6 of 12 jurors would be perfectly balanced, and we need a bit more than that, 7 of 12 would be a good number. So if we charged someone with misconduct, if 7 of 12 of his peers would conclude that he deserves to be fired, then we’d have a preponderance of the evidence.

Substantial Evidence:  We know that his has to be less than preponderant evidence. We also know that the courts have defined substantial evidence as “a grain more than a scintilla.” I have no idea what a scintilla looks like, and a grain is pretty darned tiny. Therefore, being generous, I would say that to have substantial evidence, we would need three maybe four jurors to conclude that a performance removal was warranted.

We’re quite proud of this analogy as a teaching tool. No, there’s never been a court or a board that has stated the burdens in a similar manner, but we hereby give notice that this language is hereby released from our copyrighted© protections thereby freeing any of you adjudicators out there to use it. With all due respect, it’s a lot more relatable than a line like a “grain more than a scintilla” to most of us normal humans (yeah, I’m talking to you, Chief Justice Roberts).

With us in the middle of rethinking the civil service protections these days, it recently dawned on us that maybe this model would serve as an option to get us out of the quagmire of employee appeals, complaints, and grievances. Yes, we could change the law. But rather than waiting for that possibility to happen, what if we set up an alternative system that would tempt employees to forgo their appeal/grievance/complaint rights in exchange for an alternative resolution to their dispute?

And that’s when we got the idea of an administrative jury.

“But, Bill, how would that work?”

Ah, dear reader, I guess you’ll have to look for our next article giving the details. See, we don’t want you to ever stop reading and attending FELTG. That’s why we build in little cliff hangers like this one, to keep you interested. Wiley@FELTG.com

Summary Performance Ratings and PIP Initiation

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By William Wiley, September 19, 2018

Here at FELTG, we invite seminar participants to address follow-up questions to us in case we were unclear in class, or simply if the old memory isn’t working too well on a particular day. The following is a question we received recently from an attendee in our famous and fabulous MSPB Law Week seminar. Check out our website for the next offering of that program in your neighborhood: www.FELTG.com.

The question:

Greetings!  Hope all is well.

I have a hypothetical question related to the training we recently had regarding firing employees who cannot perform acceptably in their positions.

During your training, you walked us through the benefit of not marking an employee as ‘Unacceptable’ and simply proceeding with the PIP.  Can you please explain that rationale again?

Thank you.

Our tried and true FELTG-answer:

No probelmo. Here’s the logic tree:

1 – If you PIP an employee, he cannot challenge your judgment that his performance is unacceptable. That determination and the PIP itself are outside the grievance and EEO complaint process (with the limited exception of reprisal and hostile environment complaints). He can challenge the result of the PIP if there is a failure to perform, but he cannot challenge the initiation of the evaluation period itself.

2 – If the employee fails the PIP, you fire him. He can then appeal to an MSPB judge who will most likely affirm the removal. The MSPB appeal takes three to four months for the judge to adjudicate the removal appeal, then we’re essentially done. There is a possible higher-level review by the Board and even by the courts, but the judge’s decision is usually upheld all the way through the appellate process.

3 – HOWEVER, if you give the employee an Unacceptable performance rating at the same time you PIP him, he can separately challenge that rating. He can file an EEO complaint, have your judgment that the performance was unacceptable investigated, get a Report of Investigation, file a formal complaint with EEOC, and eventually get a hearing before an EEOC judge and a decision as to whether the Unacceptable rating was justified. That process these days takes about four years.

If you give a rating commensurate with initiating the PIP, the eventual removal arguably could be set aside years later by some crazy EEOC judge ruling that the performance prior to the PIP was not unacceptable after all.

Trust me. You do not want this ugly mess on your hands. Just don’t rate him. Initiate the PIP and it’s a much more secure action. As we always teach, do no more than required by law when you are dealing with a problem employee. The more you do, the more you will have to be prepared to defend. And the more you have to defend, the greater is the chance that somebody somewhere in the review process will find fault with something you did.

If your CBA or agency’s stupid policy requires that a summary rating of record be given at the same time you initiate a performance evaluation period, then you are stuck. However, that’s hardly ever the case. Just initiate the PIP, wait 30 days, then propose to fire the employee if he does not perform to standard in all the elements of his performance.

This is sooooo easy if you know what you’re doing.

Our Most Popular Topic This Year

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By William Wiley, September 19, 2018

When you’re in a classroom as much as we are here at FELTG, you start to notice topics that come up from participants when they form a pattern or are repeated. The most asked-for repeated topic we’ve had so far this year is for a format for a Reprimand in Lieu of a Suspension.

If you’ve attended our classes, you know that here at FELTG, we’re down on suspensions as a form of discipline. They hurt the agency sometimes more than they hurt the employee. On suspension days, the agency has to forgo the services of the suspended employee. Coworkers sometimes have to pick up the slack, not something that makes for a happy workplace. We even had a supervisor in a class earlier this year who said he had to spend nearly a thousand dollars in overtime to cover for a suspended employee. Why do these things if there’s an alternative just as good without all the downside?

And that’s where a Reprimand in Lieu of a Suspension comes into consideration. Experienced Employee Relations Specialists know how powerful progressive discipline can be when trying to defend firing an employee. As President Trump reinforced in his May 25 Executive order, progressive discipline is not mandatory, but as seasoned employment lawyers have learned, the Board gives a lot of weight to progressive discipline when evaluating the Douglas Factors relevant to a case.

Every GS-1 Employee Relations Specialist knows there are three steps to traditional progressive discipline:

1st offense –    Reprimand

2nd offense –   Suspension

3rd offense –    Removal

 The variation that we here at FELTG think is a great idea is to replace the suspension second-step with a Reprimand in Lieu of a Suspension. Here’s how that would work:

First offense – Reprimand, as usual

Second offense –

a. Propose a classic suspension.

b. Then, after the employee has responded to the proposed suspension notice, the Deciding Official offers the employee a Reprimand in Lieu of a Suspension using the format below.

c. f the employee accepts, you have avoided the workplace harm caused by a suspension, with the bonus that you will not have to deal with a grievance or EEO complaint.

Third offense – Remove as usual based on the two prior acts of discipline.

MSPB has recognized this alternative as equivalent to a suspension for many years now as long as the employee agrees to it (we’ve not seen the Board treat a unilaterally-imposed alternative in the same manner). if you’re not using them, you’re missing out on an employee-friendly management-supporting approach to discipline that can really make your life better.

We’re just busting with cutting-edge ideas like this. Come to our seminars and learn even more.

 

Reprimand in Lieu of Suspension Agreement Format

[Letterhead]

From:   [Deciding Official’s name, title, and organizational location]

To:       [Employee’s name, title, series, and grade]

Subj:     Decision Regarding Proposed [Suspension of X Days]

Date:    [Month, day, and year]

On [date of proposal notice], your supervisor proposed to me that you be suspended based on certain charged misconduct. [If the employee responded to the proposal, note that here; e.g., “You responded both orally and/or in writing to the proposal.”]  I have considered the proposal and all information relevant to the charged misconduct, and it is my determination that discipline is warranted. However, because your suspension from the workplace would cause a hardship for the agency, I hereby offer you a Reprimand in Lieu of Suspension under the following conditions:

  1. You commit to abstaining from any future acts of misconduct.
  2. You acknowledge that this Reprimand in Lieu of Suspension is a step in progressive discipline and may be used as an aggravating factor in deciding the proper penalty should you engage in further misconduct.
  3. You adopt this reprimand as a voluntary act on your part which you will not grieve nor otherwise challenge in any forum.

If you accept this offer of a Reprimand in Lieu of Suspension, please sign and return this memo to your supervisor by close of business tomorrow. If you choose not to accept this offer, I will issue my decision regarding the proposed suspension as soon as practicable.

____________________________

[Deciding Official’s signature]

 

By my signature below, I, accept a Reprimand in Lieu of Suspension under the above conditions.

_____________________________________               ____________

[Employee’s name]                                                       Date