By Deborah Hopkins, June 12, 2019

One of the more common categories of questions we get at FELTG involves the exceedingly technical area of drafting disciplinary charges. Here’s a recent note that came to us:

I have an employee who is being charged with unauthorized absence for a period of time. The specification(s) read something to the effect “You were absent from duty beginning January 28, 2019 through March 22, 2019 without authorization.”

There is a debate as to whether each day the employee was absent should be listed as a separate specification versus how it’s written above. I believe either specification spells out the conduct the Agency can prove. Any recommendations?

And the FELTG response:

Thanks for the email. I can’t give legal advice on your specific situation, but I can speak to the principle of drafting charges in general. When you charge an employee with misconduct you have to prove every single word in the charge. If there’s one word you can’t prove, you lose the whole charge – even if you have mountains of evidence the employee did something wrong. Check out Parkinson v. DoJ, SF-0752-13-0032-I-1, (October 10, 2014) (NP); Thomas v. USPS, 116 MSPR 453 (2011); Burroughs v. Army, 918 F.2d 170 (Fed. Cir. 1990); Brott v. GSA, 2011 MSPB 52.

When it comes to specifications for charges, you don’t always have to prove every word (though that’s the goal), but you do have to prove the “essence” of the specification. We know from the case law that this means you have to get it pretty close to perfect, but if you get a word or a number wrong you still might get to keep the specification. See, e.g., Russo v. USPS, 284 F.3d 1304 (Fed. Cir. 2002).

Also worth noting, if you have multiple specifications and lose some of those specifications, your charge will still stand – as long as at least one specification sticks. But the more specifications you lose, the more wiggle room it gives MSPB to mitigate your penalty, if the penalty starts to fall outside the bounds of reasonableness.

The danger in [hypothetically] charging something like “absent from duty beginning January 28, 2019 through March 22, 2019 without authorization” is that if during even one of those days the employee was entitled to be absent (let’s say he was incapacitated for duty because of the flu and he had sick leave on the books) then you could lose the entire charge if the adjudicator thinks you have lost the “essence” of the specification. If even a day within the entire span of absence was authorized, have you still proven the specification?

There’s a strong argument to be made that the “essence” is still there, but this is now moving into a gray area. What about the weekends that are included in the span of those dates, when the employee wasn’t supposed to be at work? Is that inclusion of weekends far enough away from the “essence” of the specification, for you to lose you the whole charge? I am not sure I’d want to take on that battle, especially when there is a much easier way to handle this kind of case.

The alternative way of drafting the charge is to list each day of absence as its own specification; that way even if it turns out that for a few of those days the employee would have been entitled to leave, the charge could still stand based on the remaining specifications.

Charge: Unauthorized Absence

Specification A: 8 hours on January 28, 2019

Specification B: 8 hours on January 29, 2019

Specification C: 8 hours on January 30, 2019

Specification D: 8 hours on January 31, 2019

Etc.

It seems like a bit more work to do things this way, but we have learned to be exceedingly conservative when drafting charges. MSPB has traditionally been technical on how it looks at charge drafting, and (if we ever get an MSPB again) we can assume that the new Board members will follow nearly 40 years of precedent in this area.

For more on charge drafting plus a whole lot more, join FELTG in Washington, DC for MSPB Law Week September 9-13. I hope we’ll see you there. Hopkins@FELTG.com

Civil Service Status Update

Deborah Hopkins, News Flash

By Deborah Hopkins, May 21, 2019

A lot has happened over the last few weeks as it pertains to the world of federal employment law. Here’s a recap, in case you missed anything.

MSPB: We finally have a third nominee for the MSPB. Chad Bungard was recently nominated by the President to be the Vice Chairman, for a term that expires in 2025. Among other positions, he previously served as General Counsel at MSPB for several years. As of today, there is no date for a committee vote on his nomination. When might we see the Board back at full capacity? Your guess is a good as ours.

Executive Orders: In early April, the Court of Appeals for the D.C. Circuit heard oral arguments in the case dealing with the legality of President Trump’s Executive Orders issued May 25, 2018. Most of the discussion dealt with jurisdictional issues and whether the court, or the FLRA, is the proper forum to discuss challenges to these EOs.

FLRA: Speaking of labor relations, the General Counsel seat at the FLRA has been empty for two years, but the President nominated Catherine Bird, who is currently Principal Deputy Assistant Secretary for Administration (ASA) at the Department of Health and Human Services.

EEOC: The EEOC has a quorum for the first time since January – and it has a new Chair as well. On May 15, nearly two years after she was first nominated, Janet Dhillon was sworn in as the EEOC’s 16th Chair for a term that expires July 1, 2022.

OPM: The Senate Committee on Homeland Security and Government Affairs recently voted to advance OPM Director nominee Dale Cabaniss to the Senate for a confirmation vote. If confirmed she will be the third person to hold this position in just over two years.

OPM’s demise: Last week, the administration unveiled the Administrative Services Merger Act, which would effectively eliminate OPM by reorganizing it into a subcomponent of GSA. Under the proposed structure, the person in charge of federal workforce policy would be a non-Senate-confirmed political appointee. As you can imagine, not everyone is happy about this potential change. Because this is a piece of proposed legislation, both the House and Senate will have to agree in order for it to be signed into law by the President.

LGBTQ employment protections: A few weeks ago, the Supreme Court agreed to look at whether Title VII’s prohibition against sex discrimination includes an employee’s LGBTQ status. Arguments are on the docket this fall. Also, last week the House passed the Equality Act, which among other things would make protections for LGBTQ federal employees a statutory right. The Senate and the President would need to sign off on this piece of legislation in order for it to become law.

As you can see, there is a lot going on, and plenty more to come. Stick with FELTG and we’ll keep you posted. Hopkins@FELTG.com

The $505 Alternative to Filing a PFR to the [Nonexistent] MSPB

Deborah Hopkins, May 2019, Newsletter

By Deborah Hopkins, May 15, 2019

Everyone who reads this newsletter knows by now that we don’t have a fully functioning Merit Systems Protection Board (MSPB or Board). Each of the three positions at the top of the agency, reserved for political appointees, has been vacant for more than two months, but there have been no decisions issued at all for over 28 months because, from early January 2017 through the end of February 2019, there was only one Board member – and one member is not a quorum. No quorum = no MSPB decisions.

Three nominees have been named; two have already cleared committee, and the final nominee needs to be voted on in committee. Then, if he passes muster, all three nominees will be brought to the Senate floor for a confirmation vote.

As it stands today, the administrative judges (AJs) are still issuing initial decisions (IDs) based on agency actions. If either party does not like the outcome of an ID, the typical process is for that party to file a Petition for Review (PFR) with the three Board Members – a process that usually renders a decision within about six months or so. But because at the Board level the MSPB is defunct, any PFR that is filed goes into a pile on top of more than 2,100 other PFRs, and there it sits for who-knows-how-long. Talk about discouraging.

There is a lesser-known alternative to filing a PFR that it appears more appellants are taking: filing PFRs directly with the Federal Circuit. After 35 days, if no PFR is filed with the Board, the administrative judge’s ID becomes the final Board decision, after which parties have the right to file a PFR directly with the Federal Circuit. 28 USC § 1295(a)(9); 5 USC 7703(b)(1)(A); 5 CFR § 1201.113.

Typically, appellants file PFRs to the MSPB because it’s free, and filing in the Federal Circuit is not. Also, the PFRs from the Board can then be appealed to the Federal Circuit – so appellants who go the route of taking the PFR directly to the Federal Circuit are losing an entire step of review.

I can’t say I blame them, though; I wouldn’t want to wait 3+ years to get a decision on a PFR. Either way they go, MSPB or Federal Circuit, appellants who file PFRs don’t have very much success in getting agency discipline overturned or mitigated. The Federal Circuit’s scope of review in an appeal from the Board is limited by statute; it must affirm the Board’s decision unless the court finds the decision to be:

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 USC § 7703(c); see Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010).

Under the substantial evidence standard, this court reverses the Board’s decision only “if it is not supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Haebe v. Dep’t of Justice, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (quoting Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).

Hairston v. VA, No. 2018-2053 (Fed. Cir. Mar. 8, 2019).

Here are some additional facts you may not know about the Federal Circuit:

Last year, the Federal Circuit upheld agency decisions 92% of the time.
It costs about $505 to file a PFR from an agency action in the Federal Circuit.
If an agency wants to take a case to the Federal Circuit, it can’t file unilaterally; OPM has to give approval and then the Department of Justice gets involved with the litigation.
The largest percentage of cases the court takes deals with patents.
The Federal Circuit may have a total of 12 active circuit judges sitting at any given time, and they are required to reside within 50 miles of the District of Columbia. 28 USC § 44. Judges on “senior status” are not subject to this residency restriction.
The Federal Circuit website lists 18 judges; only five are female.
In 2018, three of the judges sat by designation with other district or circuit courts, which is allowable under 28 USC 291.
Oral argument sessions are open to the public. If you’d like to attend, oral arguments are normally held the first full week of each month. You can find the oral argument calendar for the year on the court’s website: http://cafc.uscourts.gov/argument/upcoming-oral-arguments.
Total argument time (including rebuttal time) is limited to 15 minutes per side for panel hearings and 30 minutes per side for en banc.
An attorney who wishes to be admitted to practice before the Federal Circuit must fill out an application and pay a $231 nonrefundable fee.

Expect to see more Federal Circuit action in the coming months, as appellants are starting to realize that they’ll have a resolution much sooner if they skip the PFR to the Board. In fact, recent statistics on the MSPB’s website show that only half the usual number of PFRs are being filed at the MSPB.

It doesn’t have to be this way – so I beg you, if you know someone on the Senate Homeland Security and Government Affairs Committee, please ask them to vote quickly so we can get our MSPB back. Pretty please. Hopkins@FELTG.com

The Newest Federal Circuit Decision Offers a Surprising Interpretation of the VA Accountability Law

Deborah Hopkins, News Flash

By Deborah Hopkins, May 7, 2019

Most readers of our newsletter know that when a new law is passed, all we have to go by is the plain language of the statute, any accompanying regulations, and legislative history. After that, the edges of the law are tested through the courts, and the case law that develops teaches us how to interpret the law.

Just under two years ago, Congress passed, and the President signed into law, the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (the Act), 38 USC § 714. This law reduced the level of employment protections for federal employees. We have written about it before, but as a recap in how it differs from Title V Chapter 75 removals, here are some of the big takeaways:

Shortened notice periods,
A lower burden of proof (substantial evidence) for misconduct cases, and
The Board has no mitigation authority over the agency’s penalty selection.

38 U.S.C. § 714(d)(2)(A)-(B).

Well, now that several months have passed, the edges of this new law are coming into focus. An interesting issue was raised in a Federal Circuit decision that came out last week: While there is no penalty mitigation, the Board might actually have authority to review the VA’s penalty for reasonableness. Mogil v. Dep’t of Veterans Affairs, No. 2018-1673 (Fed. Cir. May 1, 2019).

Before we get into that, though, let me set out the facts of the case for you. I think you’ll enjoy them.

The respondent, Allyn Mogil, was an engineering technician at a VA Medical Center in Minneapolis. He shared an office with a coworker, Tony Horacek. Mogil and Horacek had an ongoing dispute about the lighting in their office. Mogil wanted all three lights to remain on, and Horacek wanted one or two lights off because the lights caused a glare on his computer screen and bothered his eyes. Mogil placed tape over the light switch, and even welded a metal plate over the light switch so that the lights couldn’t be turned off. Each time the switch was covered, though, Horacek removed the barriers and turned the lights off when Mogil left the office. On several occasions, Mogil asked his supervisor to intervene, and his supervisor eventually told them to leave the lights on and to get along.

The day after the supervisor’s directive, Mogil left the office for a while, and when he got back he saw that Horacek had turned the lights off. According to the case he “snapped.” He took a hammer from the electrical shop, and smashed the office light switch. Not only did this break the light switch and permanently disable the office lights, he also damaged the lighting in nearby rooms.

[Our tax dollars, hard at work, everyone.]

Mogil was removed for damaging government property, under 38 USC § 714. The VA did not do a traditional Douglas factors analysis. After all, it appeared a Douglas analysis was not required under the Act. However, the decision stated the agency removed Mogil because:

Mogil’s job “carrie[d] great responsibility,”
The VA entrusted him “to manage millions of dollars of allocated taxpayer funds,”
His actions showed he could no longer be trusted to carry out his responsibilities professionally,
Destroying government property in response to an officemate turning the lights off “is never an acceptable response to an interpersonal disagreement.”

The VA considered the fact that Mogil was seeing a counselor and that he apologized and expressed remorse, but that did not outweigh the damage done.

[Does that list still look like Douglas factors to anyone else?]

After the AJ’s decision affirming the removal became the final Board decision, Mogil filed a PFR to the Federal Circuit. (We can assume that was because there was no quorum at the Board.)

As I mentioned earlier, the parties in this case introduced a new question to the Federal Circuit: they disputed the effect the Act has on the Board’s ability to review a penalty’s reasonableness.

Here’s the core of Mogil’s argument:

Yes, the Act eliminated the Board’s ability to mitigate the penalty if the decision is supported by substantial evidence.
But, the Act’s requirement that the Board determine whether “the decision of the Secretary to remove . . . an employee under subsection (a) is supported by substantial evidence,” includes whether substantial evidence supports the reasonableness of the penalty [bold and emphasis added by FELTG].
So, not only does the agency have to prove by substantial evidence that the he committed the act of misconduct, but the agency also has to prove by substantial evidence that the penalty is reasonable.
The fact that the Board can no longer mitigate the penalty does not excuse the agency from considering the Douglas factors before arriving at a decision.

And the VA’s argument:

The Act was intended to make it quicker and easier to remove VA employees.
The Board can only review whether substantial evidence supports the VA’s finding that the misconduct occurred.
Because the Board can no longer mitigate the penalty and § 714 eliminated the efficiency-of-the-service requirement, the Board no longer reviews whether a penalty is reasonable and a Douglas factor analysis is irrelevant.
Requiring a Douglas factor analysis before removing an employee would undermine the purpose of § 714, which was to simplify and expedite the removal process.

And, the Federal Circuit’s decision on these arguments:

There is no dispute that Mogil intentionally destroyed government property.
Under the Act, the Federal Circuit may actually have the authority to review the agency’s penalty for reasonableness: “Assuming, without deciding, that we may review the VA’s penalty selection as we can the penalties imposed on federal employees generally, our review ‘is highly deferential,’ and penalties are considered reasonable unless ‘grossly disproportionate to the offense charged.'” (Citations omitted); [bold and emphasis again added by FELTG].
Mogil did not identify any Douglas factor that the agency did not consider and that would have been relevant in selecting a penalty, so the agency action was in accordance with law.
And the real kicker: “We leave for another day the statutory interpretation issue with constitutional implications.”

Holy moly. Are you still with me? The Federal Circuit appears to be saying that, contrary to what we’ve been thinking for the last two years, the Board has the authority to review the reasonableness of the penalty in cases brought under the new VA law. So if the Board doesn’t have the authority to mitigate the agency’s penalty, here’s my question: Is the Federal Circuit telling us that if there is substantial evidence a penalty is unreasonable, the entire action must be overturned? Only time will tell. Hopkins@FELTG.com

We Might Get an MSPB After All

Deborah Hopkins, News Flash

By Deborah Hopkins, April 30, 2019

Did you hear the big news? Yesterday, President Trump nominated a third and final member to the Merit Systems Protection Board. After months of waiting and a lot of angst, B. Chad Bungard has been named to be the Vice Chairman for a term that will expire March 1, 2025.

According to the White House press release, Mr. Bungard currently serves as the Deputy Commissioner for the Office of Analytics, Review, and Oversight (OARO) at the Social Security Administration (SSA). Mr. Bungard is responsible for providing executive leadership to more than 2,000 employees, including leading the Office of Anti-Fraud Programs and the Office of Appellate Operations, where SSA’s Administrative Appeals Judges adjudicate appeals from SSA’s Administrative Law Judges. Previously, Mr. Bungard served as the General Counsel for the Special Inspector General for the Troubled Asset Relief Program (SIGTARP) and Chief Counsel to the SSA Inspector General. Mr. Bungard earlier served as the General Counsel for the United States Merit Systems Protection Board. He also spent several years on the Hill in leadership roles, where he focused on oversight and government reform. He started his career in private practice, where he primarily focused on Federal civil litigation. In addition to attaining his B.S., cum laude, from Liberty University and J.D. from Regent University School of Law, Mr. Bungard received an LL.M. in Law and Economics from George Mason University School of Law.

Earlier this year, the Senate Committee on Homeland Security and Governmental Affairs voted out of committee MSPB nominees Dennis Dean Kirk (R) for Chairman and Julia Akins Clark (D) for Member. Committee Chair Ron Johnson announced that the Senate would wait for the third nominee to be named and voted out of committee before the first two nominees would be confirmed.

Here’s to hoping the full Senate will vote on these nominees quickly, and we get a functioning MSPB by the time school’s out. FELTG will keep you posted. Hopkins@FELTG.com

The Seven Deadly Sins Employment Law Practitioners Commit

Deborah Hopkins, News Flash

By Deborah Hopkins, April 23, 2019

One thing I don’t understand is why people make their jobs (and as a result, their lives) more difficult than necessary. Aren’t the challenges that are out of our control already causing enough problems?

In my adventures traveling the country conducting federal employment law training, I’ve come across some suggestions that employment law practitioners offer as advice, that make things far more difficult than necessary for all parties involved. Not all advisors commit these sins; many do not. But in order to make the list, the Deadly Sin has to have been seen in multiple agencies, multiple times over the past year.

Here they are, with my bulleted responses following each:

Inaccuracy. Advisors in L/ER or OGC tell supervisors they need a three- to six-month record of poor performance before they can put an employee on a PIP/ODAP/DP, or whatever the agency calls the period where the employee is given an opportunity to demonstrate acceptable performance.

That’s just wrong, and it’s bad advice. As soon as a supervisor can articulate why the employee’s performance is unacceptable, she can put the employee on a demonstration period, as long as the employee has been on her performance standards for a warm-up period of 60 days or so. The only thing that matters in a performance-based removal is what happens during the demonstration period. As long as the reason why the performance action was initiated was not illegal (e.g., based on race or sex or whistleblower status) and the performance is unacceptable now, the employee’s performance before that articulation of unacceptable performance has no bearing.

Imprudence. There are some jobs that are so high-level, an employee needs more than 30 days to demonstrate acceptable performance; therefore, the demonstration period should be at least 60-90 days.

No can do. The MSPB has never found a 30-day demonstration period to be too short, regardless of an appellant’s job level or type. Even if the employee’s typical work cycle takes months or even years, there must be some amount of work the supervisor expects to be done within the next month or so. Break the projects down into smaller steps and you’ll find you have a nice 30-day demonstration period. If my suggestion isn’t enough, you may want to note that several agency policies, and even the President in Executive Order 13839, now say that 30-day demonstration period is sufficient. Unless you have a union contract that says you have to provide more than 30 days, you don’t. And you shouldn’t.

Waste. If an employee fails the PIP/ODAP/DP before the end date, the agency should let the employee finish out the 30-day demonstration period anyway.

This makes no sense – and could actually cause a lot of harm. Picture this: a TSA security screener who is on a demonstration period, lets a bunch of cocaine and guns get on an airplane in the first couple of weeks of the demonstration period, and you’re going to let that screener continue working for the next several days? If so, I guess you think letting drugs and loaded weapons onto a plane are no big deal. Or what about the nurse who is putting patients’ lives in danger – you’re really going to let him continue to provide poor care after he shows you he cannot do the job acceptably? The same principle applies across the board, no matter the job or what the employee’s critical element is called.

It is a waste of time, taxpayer money, and supervisory resources to allow someone who fails an opportunity period before the end date to finish it out, and there is legal authority that says you can end it early due to error rate. See, e.g., Luscri v. Army, 39 MSPR 482 (1989). The primary issue the MSPB will look at is whether the employee was given an opportunity to demonstrate acceptable performance. We know from the case law that even 17 days is enough time for an employee to demonstrate whether he can do the job acceptably. Bare v. HHS, 30 MSPR 684 (1986). The only time you have to allow the full length of the demonstration period to run is if it is required by your collective bargaining agreement.

Fallacy. If the supervisor saw an employee engage in misconduct, he can’t discipline the employee unless there is additional evidence to support the charge.

The standard of proof for misconduct is preponderance of the evidence – or substantial evidence if the employee is covered by the new VA law. If a supervisor saw the employee violate a workplace rule, that’s a preponderance of the evidence. 5 CFR 1201.56(c); 5 CFR 1201.4(q). If you have witnesses and video logs, that’s great – but if you don’t then you still have enough evidence. The only exception is if the employee is a whistleblower; in that case you’ll need clear and convincing evidence, so those extra witnesses and videos will come in handy.

Risk. Don’t use Notice Leave except in extreme circumstances where you have determined an employee is a threat to safety.

Notice Leave is a paid leave status, created by the Administrative Leave Act of 2016, that allows the agency to send the employee home with no duties after a removal is proposed, for the duration of the 30-day notice period. In order to use Notice Leave the agency simply needs to document why retaining the employee at work jeopardizes a legitimate government interest, that reassignment is not appropriate, and inform the employee in the proposal that she will be placed in this pay status.

Why wouldn’t you use Notice Leave it every time you propose a removal? Congress created this category of leave exclusively for this situation. An employee whose removal is proposed will not do anything constructive during the notice period – and may even cause severe problems in the workplace. Don’t believe me? Come to our Emerging Issues Week class this July where we talk about people becoming violent in the workplace after proposed removals; even though there may be warning signs, you can’t always predict it. Plus, some people become violent with NO warning at all. Don’t gamble with your life or your agency resources. Use the gift called Notice Leave every time, and you won’t have to wonder who will become dangerous in the workplace after you’ve proposed their removal.

Apathy. It’s too much work to go through with a misconduct or performance action, and the agency will probably just settle the case anyway, so supervisors should ignore conduct and performance issues unless they are especially harmful or egregious.

I cringe every time I hear something like this. This is completely disempowering to supervisors and just plain wrong. If a supervisor wants to take an action, the role of an advisor is to make the supervisor aware of the options and to point out potential legal issues – not to tell the supervisor to forget it. If a supervisor has reason to hold someone accountable, then we should support that supervisor.

Avoidance. If an employee has EEO activity pending, the supervisor must hold off on any discipline until the complaint is resolved.

If I had a dollar for every time I heard this, I could have retired years ago. This statement is completely incorrect. EEO activity is not a shield for employees, though in reality it has become one in many agencies. Supervisors can discipline employees who happen to have EEO complaints pending, as long as the discipline is not motivated by, or because of, the person’s EEO activity. And here’s another note: It often takes between 3-5 years for an EEO complaint to be resolved, so you definitely shouldn’t wait to hold employees accountable.

I hope practitioners can understand why these pieces of advice are so detrimental to supervisors, and impact the efficiency of the government workplace. If there are other deadly sins you’ve heard about, feel free to share them and they may show up in a future article. In the meantime let’s all work together to make the federal government a better place to be employed. Hopkins@FELTG.com

Losing Charges Can Sink Your Case – Unless You Work at the VA

April 2019, Deborah Hopkins, Newsletter

By Deborah Hopkins, April 10, 2019

One of the long-standing principles we teach during MSPB Law Week (next offered in Dallas, TX, June 2-6) deals with how important it is to be mindful of the words used in disciplinary charges. Historically, if all of an agency’s charges are sustained, then the MSPB grants deference to the agency’s penalty selection unless the penalty is outside the bounds of reasonableness. See, e.g., Payne v. USPS, 72 MSPR 646 (1996). But if the agency loses even one charge, the agency loses the presumption of penalty deference and the MSPB has more room to step in and mitigate the penalty. See LaChance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999).

One of the tendencies we warn agencies against is what my colleague Bill Wiley calls “spanking the employee,” otherwise known as piling on charges. You might have an employee who has done a bunch of bad things, but the danger in piling on charges is that if you lose even one, you could lose your penalty. (Hint: One way to avoid this is to include in the decision letter a statement that says any one of the charges, standing alone, would be enough to warrant the selected penalty. See LaChance, above.) So, it’s important to be mindful of the charges and to choose your best two or three, rather than to charge 10 or 20 things and risk losing a few.

Unless you’re covered by the new VA law, that is.

Under the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (38 USC § 714), the MSPB does not have the authority to mitigate the VA’s penalty, as long as the agency can show the employee might have engaged in the misconduct. That’s right, might have. Under this law, the VA must only show substantial evidence (not preponderance like all the other agencies must show) that the employee engaged in misconduct in order to have a charge upheld. The regulatory definition for substantial evidence in federal personnel actions is “evidence a reasonable person might accept [not would accept] to support a conclusion even though others may disagree. [Emphasis added.] 5 CFR 1201.56(c)(1); 5 CFR 1201.4(p).

So if you work for the VA and you lose charges, you don’t have to worry. As long as even one charge stands, your penalty stands. To drive that point home, the U.S. Court of Appeals for the Federal Circuit just issued a non-precedential decision in what we believe is its very first decision under the new VA law, Hairston v. VA, No. 2018-2053 (Fed. Cir. Mar. 8, 2019).

In this case the appellant, a housekeeping aid, was removed for two acts of misconduct:

Charge 1: Conduct unbecoming of a federal employee (kissing a nurse without her permission)
Charge 2: Failure to follow instructions (for visiting a ward he was ordered to stay away from)

The MSPB AJ sustained Charge 1, but did not find substantial evidence on Charge 2. Normally, this is where an agency’s penalty determination would be scrutinized – but because the agency is the VA, the AJ did not have the authority to mitigate the penalty, so he upheld the removal. See 38 USC § 714(d)(2)(A)-(B).

The appellant in this case did not file a petition for review to the MSPB (probably because they lack a quorum and he didn’t want to wait at least three years to get a decision back). After a month, the administrative judge’s initial decision became the final decision, and then the appellant filed a petition for review with the Federal Circuit, which has jurisdiction under 28 USC § 1295(a)(9). (Did you even know that an appellant can skip the PFR process and go right to the Federal Circuit? It’s been happening more lately since the MSPB is currently non-functioning at the PFR level.)

The scope of review in an appeal from the Board is limited by statute and the Federal Circuit must affirm the Board’s decision unless they find it to be:

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010).

The decision is unremarkable in the Federal Circuit upheld the MSPB’s decision and affirmed the removal, as it does over 90% of the time. But it’s noteworthy because it’s the first decision under the VA’s new law, and it tells us that our read of the law on penalty mitigation is absolutely what we thought it was. Whether you agree or disagree with the application of the law, you can fire an employee at the VA if he might have broken a rule – and the Federal Circuit can’t step in.

If you’re not covered under this VA law, though, you’ll want to be extra careful when drafting charges. Join me for a webinar on this very topic July 11 called Words Matter: Drafting Defensible Charges in Misconduct Cases. Hopkins@FELTG.com.

Hey, Deciding Officials: What Exactly Does Ex Parte Mean?

April 2019, Deborah Hopkins, Newsletter, Uncategorized

By Deborah Hopkins, April 10, 2019

In federal sector employment law, we often use terms of art that carry very specific meaning. These terms may vary from a typical dictionary definition, or even from a black-letter law definition. Examples include discipline, due process, notice, response, representative, supervisor, and even employee.

A term of art that I want to highlight today is ex parte. This is a Latin term used in legal proceedings meaning “from one party.” The Legal Dictionary definition goes a little deeper: “An ex parte judicial proceeding is conducted for the benefit of only one party. Ex parte may also describe contact with a person represented by an attorney, outside the presence of the attorney.”

That’s fine, but still not entirely helpful for the purposes of agency discipline and performance actions in the federal government. It needs some context. But before the context, let’s do a quick review of the required steps to taking a disciplinary or performance action:

The Proposing Official (PO) gives the employee a proposal notice which includes the reasons for the proposed discipline (charges; Douglas factors) or performance removal (incidents of unacceptable performance during the PIP), and any relevant supporting documentation.
The employee responds orally and/or in writing to the Deciding Official (DO), based on the information given in the proposal notice and any other information the employee thinks is relevant. The employee has the right to be represented in this response.
The Deciding Official makes a decision based ONLY on what is contained in the proposal packet and what was contained in the employee’s response.

These are the due process steps required by law, for any Title 5 or Title 42 career employee who has satisfied the probationary period. So, where exactly does this ex parte concept fit in? Well, there are two primary types of ex parte violations that might arise:

An ex parte act occurs when an adjudicator considers evidence not available to one or more of the parties.
An ex parte discussion is one held by an adjudicator without allowing all of the parties to the controversy to be present.

The DO is a management official in the agency and as such makes decisions for the agency, she is also acting as the judge, because she is weighing the evidence to determine what penalty to dole out.

The employee legally is entitled to know all the reasons the PO relied upon, at the time he issues the proposal notice. So an ex parte violation occurs when, after the proposal is issued, the DO becomes aware of new information about the employee or the case, and the employee (and the representative, if he has one) is not made aware of the new information.

Let’s apply this scenario to the two types of ex parte violations above:

Ex parte act: A coworker of Ed Employee, whose removal has been proposed, sends an email to the DO, informing her that the Ed has been sending inappropriate text messages to her for months, even though she’s asked him to stop. The coworker attaches a PDF with copies of the purported text messages.
Ex parte discussion: The deputy director of the division sets up a meeting to talk with the DO about the risks of keeping Ed around, when there are unsubstantiated but potentially serious allegations of harassment against him. Ed is never told about this discussion.

Now you can see where the term ex parte comes in – only one side (the DO) gets the information, either intentionally or unintentionally, and Ed Employee does not have a chance to respond to it, because that new information was not in the proposal notice.

If such a violation occurs and the employee finds out about it, then it’s an automatic loser of a case for the agency – even if there is video evidence of the employee committing the charged act of misconduct, 15 sworn statements from credible witnesses, and a confession from the employee himself. It’s a procedural due process violation and that employee cannot be removed or otherwise disciplined.

One of the foundational ex parte cases involved a DOD employee who claimed credit for time not worked on six different days, and was removed for submitting false claims. After the proposal was issued, the Commanding Officer engaged in surveillance of the employee and provided this information, along with additional documents, to the DO – and the employee was not given any of this information. Due process violation, and we’re done; employee gets his job back. Sullivan v. Navy, 720 F.2d 1266 (Fed. Cir. 1983).

Additional cases show that ex parte information, whether it is relied upon or not, automatically violates due process. See Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011); Buchanan v. USPS, DA-0752-12-0008-I-1 (2013); Kelly v. Agriculture, 225 Fed. Appx. 880 (Fed. Cir. 2007); Gray v. Department of Defense, 116 MSPR 461 (June 17, 2011). Be careful when doing legal research, though, because you will find cases where agencies got lucky and successfully argued that the new information was not considered, or did not influence the DO. See, e.g., Blank v. Army, 247 F.3d 1225 (Fed. Cir. 2001) (After receiving the employee’s response to the proposed termination, the DO conducted a further inquiry into the matter but there was no due process violation because the interviews only clarified and confirmed what was already in the record.).

You don’t want to hope to get lucky in one of these cases, though. Fortunately there’s a simple fix for an ex parte conundrum, and it will save your case. The DO can simply notify the employee of the new information and give the employee an opportunity to respond to it, before the DO makes a final decision. See Ward, above.

It may bump your timeline back a few days to allow the extra response time, but that’s waaaaaay better than losing a case on a due process violation and having to start from scratch. Hopkins@FELTG.com

How Far Back in Time Can I Go to Discipline an Employee?

Deborah Hopkins, News Flash

By Deborah Hopkins, March 26, 2019

Recently, we received a question from a reader about how far back in time an agency can go when it wants to discipline an employee.

We have a [hypothetical] case where we recently uncovered dozens of harassing comments (sexual) from an employee, spanning many years. How many years back can I reference specific examples in his proposed removal notice? The charge will be Conduct unbecoming a federal employee.

And here’s the FELTG response.

Thanks for the question. If you look at 5 USC § 7513 you’ll notice that in cases of adverse actions for misconduct there are no time limits for how far back an agency is allowed to reach, nor is there a requirement that an action be proposed within a particular time period. (Conversely, the law in performance cases under 5 USC § 4303 limits agencies to proposing removals for poor performance occurring during the one-year period prior to the proposal date.)

Because the law is silent on timeline, we have to look to the cases to see how the MSPB has viewed this issue. Excessive delays, especially those without explanation, can hurt the agency’s ability to successfully defend a disciplinary case and may result in the discipline being overturned. The longer an agency takes, the less convincing its stance that discipline was warranted. See Baldwin v. VA, 2008 MSPB 169 (if an agency’s delay in charging discipline is unreasonable, the charges may be dismissed). In these cases where there is not an explanation for the delay, the Board will consider how serious the agency actually considered the misconduct and may mitigate the penalty if it believes the delay undermines the argument for harm. Brown v. Treasury, 61 MSPR 484 (April 7, 1994). The Board will also consider whether the delay indicates an improper motivation to discipline the employee, such as reprisal for EEO or whistleblower activity. Id.

Sometimes agencies have good reason for delaying disciplinary action. The more detailed the explanation, the better for the agency; the discipline may be upheld even if a large amount of time has passed. The reasons for delay the Board has accepted (though not condoned) include management official waiting on receipt of an investigation report, and office restructuring and turnover that caused delays in all workplace actions. Cates v. USDA, 24 MSPR 468 (Nov. 20, 1984), aff’d, 776 F.2d 1065 (Fed. Cir. 1985). If criminal charges have been filed against an employee, this may also justify the agency choosing not to charge the conduct for some time. See Williams v. SSA, 586 F.3d 1365 (Fed. Cir. 2009) (an eight-month delay after learning of the misconduct, which had occurred six years earlier, did not prevent the agency from disciplining the employee).

Not finding out about the conduct until recently is a darn good reason for not disciplining the employee until now; the key is not to wait too long, now that you know what happened.

An employee’s primary defense in one of these cases is an affirmative defense called laches. A party claiming laches must establish two elements: 1) the agency’s unreasonable delay in bringing a personnel action, and 2) resulting prejudice to the appellant. See Carr v. SSA, 185 F.3d 1318, (Fed. Cir. 1999). Prejudice to the appellant is shown if the appellant encounters increased and prejudicial difficulty in mounting a defense due to the delay, such as the loss of records, destruction of evidence, fading memories, and the unavailability of witnesses. Hoover v. Navy, 957 F.2d 861 (Fed. Cir. 1992).

While an employee may assert laches, you’ll want to look for evidence the employee actually remembers the misconduct which you’re charging. In Williams the appellant actually stipulated to the charge, which turned the light green for the agency to proceed with discipline. In Baldwin, the employee asserted he did not remember the conduct at issue, but other evidence including witness statements, indicated he did in fact know what the agency was talking about, and the Board said his assertions were “not…nonfrivilous.”

One other thing, on the “Conduct unbecoming a federal employee” charge: well done. It’s tempting in cases of egregious and harassing behavior, to charge an employee with Sexual Harassment. But that can be tough, because the bar to prove sexual harassment is quite high – and if you don’t prove all the elements of sexual harassment, your discipline cannot stand even if you have 15 sworn witness statements, documentary evidence, a video of the harassing conduct, and a confession by the harasser.

At FELTG, we’d suggest using the charge listing out all the harassing behavior as specifications rather than running them all together in a list as part of the generic charge. It would look like this.

Charge: “Conduct unbecoming a federal employee”

Specification A: On February 5, 2019, you referred to Coworker X as “a hot piece of ass.”

Specification B: On November 16, 2018, you slapped Coworker X on the rear end in the break room at lunchtime and said, “I want some of this.”

Specification C: On October 1, 2018, you told Coworker Y that you wanted to get Coworker X alone in the stairwell and have your “way with her once and for all.”

Specification D: On August 5, 2018, you told Coworker X if she did not have sex with you, you would tell the Agency Director she was conducting personal business on government time.

Be specific. Use dates, times, the employee’s actual words, and his actions – even if it’s uncomfortable to see it in writing. Go back as far as you need to, without overdoing it. Resist the urge to “spank” the employee, as Bill Wiley puts it, by listing every single bad thing he has ever done. Instead, either focus on the most recent or most egregious incidents and list those. If you lose a couple of specifications, no problem, but if you list 20 and only two stand, the Board may decide to mitigate your penalty. If you list two and both stand, the Board doesn’t have the authority to mitigate unless your penalty was unreasonable. See, e.g., Payne v. USPS, 72 MSPR 646 (1996).

As we say at the end of each training day, good luck out there. Hopkins@FELTG.com

Cook-ing a Sick Employee

Deborah Hopkins, March 2019, Newsletter

By Deborah Hopkins, March 13, 2019

A few days ago I got a nice note from a FELTG customer, who had a question about an employee with excessive absences. Allow me to paraphrase a snippet that you might find interesting.

I recall learning in one of your courses that a supervisor who approves leave cannot then turn around and use the approved leave to support a disciplinary charge of excessive absence. Is this correct – and if so, are there any exceptions?

And here’s the answer: While there’s a fundamental principle that says an agency cannot discipline someone for being on approved leave, there are indeed exceptions. At FELTG, we like to highlight these kinds of exceptions, as they provide us with the coordinates of the outer boundaries of the law, for taking these kinds of actions.

The foundational case for excessive absence removals, one that every employment law practitioner should read, is Cook v. Army, 18 MSPR 610 (1984). This case sets out the elements required for an excessive absence removal, where an employee has been on approved leave for a period of time but the agency can no longer allow the absence to continue, and needs to remove the employee for not being able to work. Here they are:

The employee was absent for reasons beyond her control;
- For example, she was too sick to come in to work.
The absences continued beyond a reasonable time;
- For example, she was gone for 2 months out of 6 months after her FMLA ran out (see Gartner v. Army, 2007 MSPB 8; Savage v. Army, 2015 MSPB 51).
The supervisor warned the employee that she would be removed if she did not report to work;
- Send the employee a letter that tells her this.
The agency showed that the position needed to be filled on a regular, full-time basis
- Your Douglas analysis on the harm caused by the employee being gone is key here.

After you read Cook, take a look at Curtis v. USPS, 2009 MSPB 134, in which a Cook removal was upheld when, over a 21-month period, the employee was absent for 77 days (on approved LWOP) due to PTSD and depression. That works out to about one day per week. If this kind of intermittent attendance happens for a couple of weeks, you don’t have a burden – but this went on for nearly two years and the agency was able to show a hardship in the absences.

You’ll want to be careful here. You can rely on approved annual leave, sick leave, and LWOP but you cannot count FMLA excused absences (these are an entitlement) or AWOL (which is an act of misconduct) when determining what constitutes excessive absence. See McCauley v. DoI, 116 MSPR 484 (2011); Savage, supra.

If you can’t meet even one of the Cook elements listed above, you can’t Cook an employee. Let’s look at a couple of cases that demonstrate this point.

First up is Miles v. DVA, CH-0752-14-0374-I-2 (May 17, 2016). Miles had been out on approved leave for quite some time (1,000 hours, if I remember correctly) and the agency needed him to come back to work, so they sent him a letter telling him so. The warning letter told the employee that if he did not return to work, he would be disciplined – but it did NOT state that absence on approved leave would warrant dismissal. There was the agency’s first problem. Secondly, Miles’ medical documentation said he could return to work in six months, which was a foreseeable end to the absence. The agency had already granted 1,000 hours of approved leave, and the workload was actually getting done in the office despite his absence. The result: MSPB decided the agency did not meet the Cook burden, and Miles got his job back.

Another case to check out where the agency lost an excessive absence removal, is New v. DVA, 99 MSPR 404 (2005). In this case the employee had 12% absences over a five-year period but the MSPB reversed his termination because the Cook criteria were not met – being absent 12% of the time is not excessive enough.

One other approach to consider with an employee who is too sick to work, rather than Cook-ing him, is doing a non-disciplinary Medical Inability to Perform removal. I know it’s not easy on the conscience to fire someone who is in a bad medical place and is too sick to come to work; after all, you’re not dealing with someone who is breaking the rules for fun. But the good news is, these removals almost always help the employee’s case in an application for disability retirement. For information on this, and a whole lot more, join FELTG for Absence, Leave Abuse & Medical Issues Week, March 25-29 in Washington, DC. Hopkins@FELTG.com

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