The Board Saves the Deciding Official; Agency Prevails Despite DO Mistakes

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By Deborah J. Hopkins, May 16, 2023

As we work our way through all the cases coming out of MSPB’s backlog, some catch our attention more than others, including Lott v. Army, SF-0752-16-0490-I-1 (Apr. 10, 2023)(NP).

In this decision, the material facts were not in dispute. The appellant suspected that her husband was having an affair with a soldier in his unit. She improperly accessed agency databases containing Personally Identifiable Information (PII) to track down information on the soldier. She then passed along the PII to a colleague and asked the colleague to investigate whether the affair was occurring.

After a falling out with the appellant, the colleague reported the appellant’s conduct in accessing the PII. The agency investigated and removed the appellant for “unacceptable and inappropriate conduct from an HR employee.”

The Board upheld the appellant’s removal despite the Deciding Official making multiple mistakes:

  1. The DO inappropriately held the appellant to a higher standard based on perceived fiduciary responsibility. At the hearing, the DO “testified that she believed the appellant held fiduciary responsibilities, despite not being entrusted with anything related to the agency’s finances, by virtue of her access to employees’ personal information.” The Board clarified that fiduciary responsibilities under the Douglas factors only apply to an employee who has access or responsibility to an agency’s finances in some capacity – not PII.
  2. The DO wrongly concluded the agency’s Criminal Investigation Command (CID) determined the appellant had committed a crime. Both the PO and DO relied on information that CID determined the appellant committed a criminal offense. In reality, CID only found that it had probable cause to believe the appellant committed crime but did not have enough evidence to actually prosecute. Therefore, it was error to consider the appellant “actually committed” a criminal
  3. The DO improperly found the appellant’s remorsefulness was not mitigating because the appellant argued that similarly situated employees were not similarly disciplined. Among her defenses, the appellant attempted to blame the coworker who printed out the PII, as well as the colleague who took the envelope of PII to look into the information. According to the Board, “it is generally inappropriate to use an employee’s attempts to defend herself in disciplinary proceedings as an aggravating factor or an indication that she lacked remorse.” While the AJ found the DO did not view the appellant’s “finger pointing” as an aggravating factor but instead merely viewed it as a factor relevant to determining the degree of mitigation to warrant her remorsefulness, the Board disagreed and found “that the deciding official inappropriately viewed the appellant’s attempt to defend herself as an aggravating factor.”
  4. The DO failed to give considerable mitigating weight to the appellant’s mental health conditions. The appellant asserted that, at the time of her misconduct, she was “extremely distressed” and dealing with depression and insomnia, and that she made a “rash and impractical decision” as a result. The Board found that this medical condition could have played a part in the charged conduct, and that the DO did not give it considerable weight as a mitigating factor.

Those four mistakes aside, the Board also held that removal was within the bounds of reasonableness. Because the nature and seriousness of the offense is the most important Douglas factor, the Board agreed with the AJ who “noted the deciding official’s testimony that she considered the appellant’s misconduct to be a serious offense that went to the core of her duties as an HR employee.”

In addition, the “appellant herself testified that, as an HR employee, she was responsible for protecting PII.”

The Board also identified several mitigating factors:

  • The appellant had 15 years of Federal service.
  • She consistently received the highest performance ratings.
  • She had never been disciplined.
  • Her depression may have played a part in the misconduct.
  • Difficulties in her marriage and personal life played a central role in her decision to engage in the misconduct.
  • She expressed remorse for the misconduct.

In addition, based in part upon demeanor evidence, the Board deferred to the AJ’s credibility assessment “that the appellant could not be trusted to maintain her professional judgment in the event she again suffered difficulties in her personal life.”

Therefore, the Board upheld the appellant’s removal despite the mitigating factors and the error made by the PO and DO.

For more on drafting legally sufficient disciplinary charges and making defensible penalty determinations, join me on Aug. 1 for Charges and Penalties Under the New MSPB, which is part of our five-day Federal Workplace 2023: Accountability, Challenges, and Trends event. Hopkins@FELTG.com

The Good News: Reassignment May Be the Best Thing for Everyone

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By Ann Boehm, May 16, 2023

Our FELTG classes on performance and misconduct emphasize that before supervisors take action against a problem employee, they try everything else first.

Reassignment is one of the suggested things to try.

I worked in the Federal government long enough to realize that, too often, reassignment means “dump the bad employees over there.” That’s not a good solution to a problem employee situation. But there can be reassignments that benefit the supervisor, the employee, and the agency! The key is being creative and flexible enough to figure out whether the right reassignment exists.

In my own career, I had bosses I liked more, and bosses I liked less than others. Sometimes, my personality did not mesh with the supervisor – and that’s OK. Recognizing personality differences, and the impact they have on workplace interactions, is a good thing. One thing I believe in strongly is that there is no way to change someone’s personality – yours or the employee’s. Finding a supervisor whose personality meshes better with the employee may turn a bad employee to a good one – or at least a better one.

Another thing that can impact on an employee’s job satisfaction is organizational change. It could be a change in leadership, mission focus, work schedule – you name it. I used to joke that any time I said I loved my job, something would change to make me dislike it. Agencies are constantly changing.

When I found myself in an unhappy workplace situation, I took it upon myself to seek out details or other reassignment options in the agency. During my career, those efforts worked well for me.

Not all employees will have the confidence to seek out their own reassignments, even when they are miserable in a job. Sometimes, it is because they fear they will be labeled as a complainer. Sometimes, it is because they do not like change. But if a supervisor encourages that change, it may result in the colloquial “win-win” situation.

How does one go about suggesting a reassignment without it seeming like an attack on an employee? Often it starts with a conversation asking the employee if they are content with their position. That can morph into questions about whether they have thought about any other jobs within the agency that interest them. And with the information gathered, the supervisor can start to explore options.

Agencies typically have many vacancies. The old saying, “Better the devil you know than the devil you don’t,” has some truth to it. Hiring someone brand new can be a roll of the dice — could be great, or, yikes, even worse. There may be a good fit for an existing employee somewhere else, and it may not require too much effort to find it.

Also, a reassignment does not have to be permanent. A temporary detail is a good way to find out if the employee will be happy in the new position, and if the receiving supervisor is happy with the new employee.

If you are dealing with a problem employee, do a thoughtful analysis of the root cause of the issues. Think about reassignment as a possibility. It may be the best thing for everyone. And that’s Good News! Boehm@FELTG.com

Applicant Failed Polygraph, But Agency Failed to Provide EEO Process Info

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By Deborah J. Hopkins, May 16, 2023

A new case from the EEOC reminds us it’s important to notify applicants about the EEO process. Lela B. v. DHS/USSS, EEOC Appeal No. 2023000348 (Apr. 20, 2023).

The complainant applied for a Uniformed Division Officer position at the U.S. Secret Service. As is mandatory for such a position, she was required to undergo a polygraph examination, which she failed on Nov. 8, 2021, “based on an inquiry regarding illegal drugs.” She was then notified she was no longer being considered for the position.

She contacted an EEO counselor on April 22, 2022. After an unsuccessful attempt at informal resolution, she filed a formal EEO complaint on June 7, 2022, alleging the agency discriminated on the bases of race (African American) and sex (female) when:

  1. On Nov. 8, 2021, the two agents who conducted the complainant’s polygraph hindered her from obtaining a job in her career field through coercion and deceitful tactics during her test that rendered a false result.
  2. On Nov. 8, 2021, the two agents who conducted Complainant’s polygraph coerced her into writing a false statement following her polygraph.
  3. The Assistant to the Special Agent in Charge released false information to a subsequent potential employer, a local Sheriff’s Office, regarding selling illegal drugs. Complainant stated, on April 21, 2022, the Sheriff’s Office informed her via email that she had “permanent disqualifiers” from employment with them, and suggested she resolve the matter with the agency.

Unsurprisingly, the agency dismissed claims (1) and (2) for untimely EEO contact, as the complainant contacted the EEO counselor months after the 45-day time limit. See 29 C.F.R. § 1614.105(a)(1). The agency also dismissed claim (3) for failure to state a claim.

The EEOC was compelled by the complainant’s argument she was not aware of the 45-day statutory timeframe because she was merely an applicant and not an employee, and “there is no evidence that she was aware of the 45-day time frame through training, posters and other information.”

Regarding claim 3, the EEOC found the agency erred in dismissing the claim, and that “the alleged actions render Complainant aggrieved” because she “alleged that the Agency manipulated the polygraph results and provided a negative reference to her potential employer because she is an African American woman.”

As a result, the EEOC remanded the case back to the agency. Properly accepting claims will save your agency countless time and resources over a remand like this  – and FELTG can help. In October, we’re holding the virtual training Get it Right the First Time: Accepting, Dismissing and Framing EEO Claims – but we can bring this to your agency sooner if you have any interest. Just let us know. Hopkins@FELTG.com

 

Making Sense of Excepted Service, Trial Periods, and Appeal Rights

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By Barbara Haga, May 16, 2023

Practitioners often ask me about when an excepted service employee has appeal rights. The answer to this question is not as simple as it might seem.

Let’s look at what excepted service is all about.

Depending on the agencies you have worked for, you may have a different view of what the excepted service covers. Some may be familiar with jobs such as intelligence specialist or attorneys, which are always excepted. Others may work in agencies where authorities to hire Veterans Readjustment Appointees are used frequently. If you work at your agency’s headquarters, you may be familiar with policy-making positions hired under excepted authorities.  Presidential Management Fellows and student appointments are also excepted.

Federal hiring around the time of the Civil War was largely accomplished through political patronage. That changed with the passage of the Pendleton Act in 1883, which created a merit-based hiring system known as the competitive service. Even at that time, there were exceptions established to the competitive process in what was identified as Schedules A and B. With passage of the Pendleton Act, only about 10 percent of the Federal jobs were competitive.  Over time that number increased, until by 1980 about 90 percent of Federal positions were competitive. According to the MSPB report Federal Appointment Authorities: Cutting through the Confusion, by 2005, only 28 percent of employees entering Federal service came in through a competitive appointment.

5 CFR 213.101 states that excepted service positions are those Executive Branch positions defined by statute, by the President, or by OPM which are not in the Senior Executive Service.  Excepted positions are identified as part of Schedules A, B, C, or D.  The “Excepted Schedules” are listed in Subpart C of Part 213 of the CFR.  As OPM makes adjustments to the jobs in those categories, they have to publish the list of new exceptions established and any that are revoked.

In deciding whether positions should be excepted from competitive service, there are two categories of jobs to be considered. The criteria are listed in 5 CFR 213.102(c).  The first group are those where OPM has determined that the positions are indefinitely removed from competitive service because the nature of the work precludes it from being included, for example, because it is impracticable to examine for the knowledge, skills, and abilities required for the job. This category includes positions such as attorneys and chaplains.

The other group are positions that are temporarily removed from the competitive service for the ease of hiring. However, they can convert to competitive service at a later date. That category covers Veterans Reemployment Act (VRA) appointments and appointments of individuals with severe disabilities.

Competitive service positions are subject to the civil service laws passed by Congress in Title 5. Excepted service positions are not covered by the appointment, pay, and classification rules in Title 5. Agencies have considerable latitude in designing personnel systems for excepted positions, although many tend to structure the excepted systems in very similar ways to the competitive processes. While I was researching material for this column, I found one agency’s document which briefly attempts to explain some of the differences between competitive and excepted positions.

There are some basic differences between the two services. One is an employee’s ability to move to another position. Employees with competitive status can move to any other competitive position; they can also voluntarily leave the competitive service and take an excepted service position. However, when this happens, an employee must be informed of the consequences of making the switch. 5 CFR 302.102(b) requires that the agency:

  1. Notify the individual that the position is excepted, and that acceptance of that position takes him/her/them out of competitive service while in that position; and
  2. Obtain a written statement from employees that they understand they are leaving voluntarily to accept that excepted appointment.

Assuming the employee held a competitive appointment that would confer reinstatement rights, he/she/they could apply for competitive positions as a reinstatement eligible. Aside from the excepted positions which allow the employee to move into the competitive service, like VRAs, excepted employees may only be appointed in other excepted positions they qualify for. Unless they held a competitive appointment at some other time, they do not have status to apply under merit promotion programs for internal promotions/reassignments.

An excepted employee trying to move to the competitive service would have to be reached through an external hiring mechanism such as an OPM certificate of eligibles or Delegated Examining.

Being an excepted employee also affects an employee’s status in a reduction-in-force (RIF).  Page 20 of OPM’s Workforce Reshaping Operations Handbook sums up what happens: “An employee with an excepted service appointment has no assignment rights under OPM’s RIF regulations. However, an agency may elect to provide its excepted service employees with RIF assignment rights.”

Competitive and excepted employees are listed in separate competitive levels based on the excepted authority that was used to hire them.  A displaced employee could not move into a competitive position unless he/she/they had personal competitive status from a prior appointment.

Excepted employees serve a trial period rather than a probationary period. The processes can be very different depending on the kind of excepted appointment.

Critical Case Update: Unacceptable Performance Removals in 2023 and Beyond

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By William Wiley, April 21, 2023

For more than 40 years, the procedures a supervisor should use when confronted with a non-performing employee have been well-established. The supervisor had to:

  1. Give the employee attainable performance standards (objectives, expectations, whatever you want to call them, usually in an annual performance plan),
  2. Allow the employee a reasonable period of time to work under those standards to get used to them (hardly ever more than a couple of months), then,
  3. Initiate a Performance Improvement Plan memo to tell the employee that he is performing unacceptably, specify that he has 30 days or so to improve, and tell the employee exactly what objectives he has to accomplish during that time to keep his job.

If the employee failed to accomplish the PIP objectives, the supervisor was then obligated by law to remove the employee from the position. Removal from the position could be through reassignment, demotion, or firing. Choosing among those three options was left to the unreviewable discretion of the supervisor. To be sustained on appeal, the agency would have to prove by substantial evidence that the employee’s performance during the PIP was unacceptable.

PRO HINT: Here at FELTG, we have always taught that the supervisor should not just reassign or propose to demote the employee at the end of a failed PIP, but instead confront the employee with the reality that he could be terminated. Then, the supervisor should offer the employee the option of voluntarily requesting a demotion or reassignment (if those options are available), thereby avoiding the need for the supervisor to defend the action on appeal. If the employee were to decline the offer, the supervisor still retained all three options. There would be nothing to lose and much to gain by inviting the employee to initiate a voluntary action.

So why is 2023 an important time to step back and consider where we are with this procedure if it has been around for so long? Well, it’s important because we have a somewhat-new precedential court decision that has added a fourth step to the original procedure and two relatively new Board members who are applying that precedence for the first time to a number of cases.

First, the court-ordered added step. In Santos v. NASA, 990 F.3d 1355 (Fed. Cir. 2021), the court held for the first time that the 1978 law that created the unacceptable performance removal procedure actually required four steps, not three. According to the court, the procedures a supervisor should use when confronted with a non-performing employee are:

  1. Give the employee attainable performance standards (objectives, expectations, whatever you want to call them, usually in an annual performance plan),
  2. Allow the employee a reasonable time to work under those standards to get used to them (hardly ever more than a couple of months),
  3. Collect evidence that the employee is failing one or more specific performance standards, then,
  4. Initiate a Performance Improvement Plan memo to tell the employee that he is performing unacceptably, specify that he has 30 days or so to improve, and tell the employee exactly what objectives he has to accomplish during that time to keep his job.

Santos effectively doubled the evidentiary burden that agencies have when defending the removal of a non-performing employee. Pre-Santos, the supervisor needed only to present proof of unacceptable performance that occurred during the PIP. Post-Santos, the supervisor now has to prove incidents of unacceptable performance BOTH pre- and post-PIP initiation. Put another way, before the Santos decision, on appeal the supervisor did not have to defend initiation of the PIP with examples of poor performance. Today, now that we have Santos, the agency’s case file will need documentation to prove that the employee performed unacceptably prior to PIP initiation.

Although Santos was issued two years ago, we have only recently had Board members in place at MSPB to interpret exactly how the new Santos requirement is to be implemented at the front-line level. Now that we’ve had a few post-Santos Board opinions, we can say with a moderate degree of confidence what supervisors should be doing to prepare to defend their post-PIP removal decisions.

We can take a fair amount of instruction from the recent non-precedential order Gwynn v. Treasury, MSPB Docket No. DC-0432-16-0865-I-1 (Feb. 28, 2023) (NP). The facts of the case are in bold below, followed by our FELTG assessment of those facts:

  • In the 10-12 months preceding the initiation of a PIP, the supervisor issued the employee eight counseling memoranda. As far as we can tell, there is no requirement to notify the employee of these pre-PIP failures prior to initiation of the PIP to satisfy Santos. In addition, there’s no requirement that any unacceptable performance notifications be in the form of a counseling memorandum. The proof will have to be in the agency file should the employee fail the PIP and the supervisor subsequently proposes to remove the employee. But it’s good to know these memoranda are acceptable justification, if you already have them in the file.
  • The supervisor issued the employee a poor midyear progress review and simultaneously placed the employee on a 60-day PIP. The supervisor did not need to issue a midyear progress review to justify the initiation of a PIP. The previous eight memoranda are enough. As we have taught for years, the better practice is to NOT issue a midyear review (or annual summary performance rating) prior to initiating a PIP. By doing so, the supervisor has now given the employee a discrete act to challenge through the EEO complaint process. And that’s exactly what this employee did, thereby occupying the agency with an EEO complaint that might not be resolved for years into the future. POP QUIZ! Now that this employee has been removed from his position for failure of the PIP, and has lost his appeal to MSPB, what happens if EEOC eventually finds that the EEO complaint related to the poor midyear progress review was illegally discriminatory? ANSWER: We don’t know, but it’s probably not good.
  • The supervisor initiated a 60-day PIP. After a few weeks on the PIP, the employee underwent emergency surgery and was on approved leave for medical reasons for five months. Once the employee returned to duty, the supervisor allowed the employee two to three weeks to get back up to speed, then re-initiated the PIP for a 30-day period. Had the PIP initially been established for a shorter period, less than 60 days, the supervisor might have been able to complete his evaluation of the employee’s performance prior to the need for sick leave. Be that as it may, the supervisor was fully within his rights to continue with the evaluation of the employee’s performance with the remainder of the PIP after the medical issue was resolved. In other words, he did not “lose the PIP” because of the medical absence. He did not have to start over.
  • The supervisor denied the employee’s reasonable accommodation request to telecommute based on his unacceptable performance and the on-going PIP. This is a valuable point. Unacceptable performance can be a valid reason to deny certain disability accommodation requests as well as being a valid reason to deny requests for annual leave or LWOP. But, be sure to follow the RA process every time.
  • The supervisor used 13 examples of unacceptable performance to justify the PIP, all drawn from the eight counseling memos and the midyear review. This is the heart of the new Santos requirement. On appeal, the employee attempted to rebut the facts and the conclusions put forward for each of the 13 pre-PIP examples, and the Board evaluated and ruled on the evidence supporting all 13. Of the 13, the Board held that 11 supported a conclusion that the appellant had performed unacceptably and 2 did not. A difficult unanswered question is what if only 9 out of 13 were found to be valid examples, would the PIP still have been justified? What if it was 6 out of 13? Or only 4?

After all of this evidence and analysis regarding pre-PIP performance, MSPB finally got around to evaluating the credibility of the testimony and documents relative to the employee’s performance during the PIP. It concluded that the employee failed to achieve “numerous” PIP objectives. Therefore, the agency’s removal (demotion) action was affirmed.

We now know, without a doubt, that an agency that removes a non-performing employee using 5 USC 432 procedures will have to prove by substantial evidence that the employee was performing unacceptably both pre-PIP and during or after the PIP. As for the pre-PIP failures to meet objectives, we believe Santos is satisfied by informing the employee of these specific incidents of unacceptable performance if they are incorporated into the PIP initiation memo. Such notice would establish that the supervisor ”warned the appellant of the inadequacies in her performance during the appraisal period and gave the employee an adequate opportunity to demonstrate acceptable performance.” Santos, 990 F.3d at 1360-61.

There is one procedural aspect of this “warning” that is unclear. When must the agency come forward with its proof of the unacceptable pre-PIP performance? Is it obligated to present this evidence as an attachment to the PIP initiation memo given to the employee? If so, Santos doesn’t say that.

If the employee fails the PIP and the supervisor proposes the employee’s removal, should proof of the pre-PIP failures be attached to the proposal notice? It would seem necessary to do so to provide the employee a chance to defend himself prior to a decision being made regarding the proposal, e.g., to provide due process. However, in its remand orders implementing Santos, the Board says nothing about a due process concern that the agency did not provide the pre-PIP proof to the employee before making its decision. See Lee v. DVA, 2022 MSPB 11 (2022), paragraph 17: “On remand, the administrative judge shall accept evidence and argument on whether the agency proved by substantial evidence that the appellant’s pre-PIP performance was unacceptable.”

Taking all these recent lessons together, our admittedly legally-conservative FELTG advice to Federal employment law practitioners has changed. When approached by a supervisor who has a non-performing employee, the supervisor should be advised to:

  1. Make sure that the employee has been given performance standards (with critical elements identified) and has had at least a couple of months to get used to them.
  2. Collect evidence of mistakes the employee has made recently that demonstrate he is performing unacceptably under at least one of his critical elements.
  3. Incorporate reference to these mistakes in the PIP initiation memo. The supervisor should retain evidence of the mistakes but does not have to provide that evidence to the employee at this time. However, if you want to give this list to the employee, we recommend attaching it to the end of the PIP initiation so as not to start off on a negative and put the employee on the defensive.

If the employee fails to accomplish the PIP objectives and the supervisor decides to fire the employee, the proposal notice should contain proof of each of these pre- and post-PIP mistakes. Yes, this may be more than necessary, but we would rather err on the side of caution than risk a due process violation before the Board.

Civil service law experts who have been around from the beginning say the Santos requirement to prove pre-PIP unacceptable performance is the most significant change to the 5 USC Chapter 43 unacceptable performance procedures in more than 40 years. It is imperative that all who advise management or represent employees be aware of how this change is being implemented by the current Board members. Wiley@FELTG.com

One Way to Help Prevent Mass Murder in a Federal Workplace

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By William Wiley, April 17, 2023

Did you hear about the recent deadly mass shooting at a Louisville bank? According to stories in the media, the killer was a 25-year-old employee. He had worked at the bank for six years, first just in the summers, then full time beginning in 2021. No doubt, he knew most everyone who worked there. Had he been in the Federal civil service, we would say that he had completed probation and was on track to becoming a career employee.

He had a master’s degree in finance from the University of Alabama. Only about 13 percent of the adult population in the U.S. has an advanced degree, so he would be among the more highly educated in most any workforce. He participated in sports in high school.

Apparently, he had raised complaints, perhaps within his workplace. At one point he said, “They won’t listen to words or protests. Let’s see if they hear this.”

So far, there’s nothing unusual about the history of the shooter or the job he held. His description could easily parallel the history of many Federal civil servants: Start your career while young in college, stick to the same type of job for several years, get a good education to prepare yourself for advancement. In fact, that’s exactly how the writer of this article started working for the federal government. Nothing outstanding or exceptional to make this guy stand out.

And then, the twist. He found out that he was about to be fired. As of this writing, we don’t know the reason for that removal decision, but perhaps it was misconduct or unacceptable performance. Soon after, on Monday, April 10, he walked into his workplace with an AR-15 rifle and killed five coworkers, at least two of whom were management officials. He set up an ambush and shot a responding police officer in the head. It is clear he probably would have killed more people if not for the heroic response by law enforcement.

Could this tragedy have been prevented? Could these five innocent lives have been spared? Although there are a number of hypotheticals that could have prevented these killings, the one most relevant to every reader of the FELTG Newsletter is this: Had the employee-shooter been barred from the workplace as soon as the tentative decision to fire him was made, he could not have accessed the workplace with his weapon and his murderous intent. This all happened in a bank, for goodness’ sake, probably one of the most secure workplaces around. Take away his employee hard-pass, instruct security not to let him through the door, and the chances are good he would not have been able to do this terrible thing. I don’t think it takes a great mind to see the advantage to keeping an individual away from the workplace once a tentative decision has been made to fire him. Even good people sometimes make bad decisions.

Now let’s look at the procedures relative to addressing the tentative removal of a Federal employee. Unlike in the private sector, a Federal employee is entitled to three important procedural steps relative here:

  • A written notice proposing removal and explaining the reasons for the tentative firing,
  • An opportunity to respond, and
  • 30 days of pay prior to the implementation of the proposal.

Nothing in law requires an employee be allowed to access the workplace during this 30-day notice period, not even for the response. It is completely consistent with the Federal statute that lays out the removal procedures for a civil servant for the proposal notice to tell the employee that he will be paid for 30 days, but he is barred from the worksite until a final decision is made. Given what happened in the Louisville mass shooting, one might think it prudent to do exactly that. Unfortunately, that is not what the government’s regulations require. Check this out, taken from 5 CFR § 752.404, with my comments in parentheses.

  1. Under ordinary circumstances, an employee whose removal has been proposed will remain in a duty status in his or her regular position. (That means IN THE WORKPLACE.)
  2. In the “rare” circumstances in which the agency determines that the employee’s presence in the workplace may pose a threat, the agency may:
  • A.  Assign the employee to other duties, (Elsewhere in the workplace?)
  • B. Allow the employee to take leave (Why would an employee use up accrued leave when there is a legal guarantee of full pay until a decision is made on his proposed removal?), or
  • C. Place the employee in a paid leave status, away from the workplace, e.g., bar the employee.

Although these procedures eventually allow the agency to bar the employee from the workplace, they do so only after stating that a barring should “rarely” be done.

As a prerequisite, the agency must somehow make the determination that it would be dangerous for this particular individual to remain at work.

Look back over the brief description of the Louisville shooter. Read more about his background if you can find it on the web. Do you see ANYTHING in his history as it was known to his supervisors that would have led them to conclude that his presence in the workplace might pose a threat? It’s fair to conclude that if the shooter had been a Federal employee whose removal had been proposed, he would have been retained in his regular position, in a Federal workplace, where he would be able to avoid the metal detectors at the entry to the worksite by waiving his employee credentials at the guard.

And if that guy happened to be a coworker of yours, where might you be today?

Folks, here at FELTG, we have big drums, medium-sized drums, and tiny little drums. We beat them on occasion because we have great respect for the good work done by most every Federal employee, and because we believe the civil service is a fair and efficient system for employing the career individuals who run our country. The inexcusable and obvious horrific situation potentially created by these regulations gets our loudest beats from our biggest drum. Why, oh why, these regulations are in place, given the clearly appalling potential outcomes and easy fixes, is simply beyond our understanding.

If you know who can change these regulations, or who can tweak your agency’s own interpretation of these regulations, please implore them to DO SOMETHING. What happened in that workplace in Louisville is going to happen again if we don’t act to stop it. Wiley@FELTG.com

[Editor’s note: The recording of Shana Palmieri’s recent virtual training event Assessing Risk and Taking Action is available for purchase. The session provides guidance on identifying signs of imminent violence, creating a risk assessment team, understanding personality traits and cognitive issues, responding to threats or violent acts, and much more. To bring this presentation live to your agency, email info@feltg.com.]

Can an Agency Constrain Official Time for EEO Complainants?

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By Deborah J. Hopkins, April 17, 2023

A few years ago, a client asked me what to do in this scenario: The employee did not show up to work for two weeks and did not respond to her supervisor’s phone calls, text messages, or emails. On the day the employee returned to work, the supervisor asked the employee where she had been. The employee said she had “been taking official time for my EEO complaints.”

EEOC’s regs at 29 CFR § 1614.605 establish that if the complainant “is an employee of the agency, she is entitled to a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information … The agency is not obligated to change work schedules, incur overtime wages, or pay travel expenses to facilitate the choice of a specific representative or to allow the complainant and representative to confer.” [bold added]

There has been much litigation over what amount of official time is considered reasonable, and also over how much control an agency has over the complainant’s use of official time. EEOC recently addressed official time in Aline A. v. USDA/ARS, EEOC Appeal No. 2022003111 (Mar. 8, 2023). The case discusses EEOC’s long-held position that there’s not a set amount of official time designated for an EEO complaint. Also, the number of hours to which a complainant is entitled will vary based on factors including the complexity of the complaint, the agency’s mission, and the agency’s need to have its employees available to perform their normal duties on a regular basis.

Regardless of the details surrounding the complaint, “the Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed, so an agency may restrict the overall hours of official time afforded.” Referring to my client’s scenario above, we know reasonable does not include an AWOL employee claiming 80 hours after the fact, without making a request.

In Aline A., the complainant alleged the agency violated the law by denying her a reasonable amount of official time for her EEO complaint when:

  • On Aug. 5, 2019, she was denied six hours of overtime pay, for official time.
  • On Oct. 25, 2019, she requested three hours of official time and was denied.
  • On Dec. 19, 2019, management denied her sufficient time (six hours) to meet with her designated representative regarding her pending EEO complaint.

The agency’s position was that it did not violate the complainant’s right to official time because:

  • On Aug. 5, 2019, the supervisor stated the complainant claimed six hours of overtime for her EEO activity (premium pay) without pre-approval. The supervisor disapproved the overtime pay but provided the complainant with six hours of credit time.
  • On Oct. 25, 2019, the supervisor had already scheduled the complainant’s performance evaluation. He denied her request due to the conflict but approved three hours of official time for Oct. 30, 2019. (The complainant was scheduled for leave on Oct. 28 and 29, 2019.)
  • On Dec. 19, 2019, the complainant’s request for six hours of official time included four hours of driving and two hours for the meeting with the representative. The agency did not think it was reasonable to provide official time for all the travel, but still granted four hours of official time, to include one leg of travel.

The Commission sided with the agency on all three official time claims and found the complainant “did not establish that the Agency improperly denied her official time for her EEO activity.” Specifically on the Oct. 25 denial, the commission ruled: “[T]he Agency reasonably delayed Complainant’s request for three hours of official time to balance her need with business reasons,” namely the performance evaluation.

Other recent cases have discussed official time including:

  • Complainants are not entitled to unlimited officialEEO time, just because they request it. Jeanie G. v. USDA/ARS, EEOC No. 2021003820 (Feb. 28, 2023).
  • A supervisor requiring a complainant to obtain approval prior to every official timerequest does not violate 29 CFR Part 1614. Angela R. v. DOD/NGA, EEOC No. 2022002317 (Feb. 21, 2023).
  • A supervisor requiring advance requests of EEO meetings related to official time, when the supervisor does not ask details about where the complainant was specifically going and with whom the complainant was meeting, does not violate 29 CFR Part 1614. Bryan F. v. Army, EEOC No. 2022002206 (Feb. 16, 2023).

Hope this helps. Hopkins@FELTG.com

Pay Attention: Avoid These Compensation Issues That Derail Settlement Agreements

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By Barbara Haga, April 17, 2023

I’m wrapping up this series on settlement agreements with a couple of cases where the agency agreed to a condition regarding a pay matter that could not be legally done.

You can find my settlement agreement article from last month’s FELTG Newsletter here.

[Editor’s note: Did you miss the recent Drafting Enforceable and Legally Sufficient Settlement Agreements earlier this month? Then mark down this date – August 23 when it will be held again.

Overtime pay. In Farrell v. Interior, 86 MSPR 384 (MSPB 2000), the Board found that a mutual mistake regarding the rate of overtime pay rendered the settlement agreement unenforceable. Farrell, an employee of the Park Police, was downgraded from the position of lieutenant to a sergeant under 752 procedures.

The underlying issue in the case was Farrell’s authorship of a “parody” entitled “The Quest: The Final Passage Home.” This document insinuated that certain female officers were lesbians, identified some employees as “Moorish,” and contained sexually explicit passages. A copy of the document was placed in the inbox of one of the senior officers. An investigation by the Internal Affairs Office ensued. Farrell admitted he had written it at home, typed it on the computer at work, and distributed copies within the Police Department over several months.

To settle the case, the parties agreed that Farrell would receive back pay and benefits, the agency would pay $7,500 in attorney’s fees, and Farrell would retire at the end of his 27th year of service. Also, he would be retained in the sergeant position, but paid as a lieutenant for the remainder of his employment. The agency delivered on all provisions.

The sticking point was the settlement agreement also stated that he would be eligible for overtime pay. In the sergeant position, OT is be paid a rate of one and a half times his lieutenant pay, a difference of roughly $15 per hour.  While the number of hours, and thus the value of this difference, is not specifically identified in the decision, it must have been a considerable amount because this was the only issue raised in the enforcement proceedings.

Farrell argued before the Board that “he had entered into the settlement agreement only because he could replace the potential lost income from the demotion with overtime pay.”  Farrell also argued that the original representative who entered into the agreement understood the settlement to mean that overtime would be paid at one and a half times his lieutenant’s pay.

What went wrong? The agency was prohibited by law from paying the agreed-upon rate of overtime. The agency cited the section of the D.C. Code, which said that an individual paid at the rate of a lieutenant was only entitled to overtime at his basic hourly rate.

The agency argued they were in compliance because they had paid everything that they could, but the Board set aside the agreement. That led to an AJ decision in 2000, a Board decision in 2001, and finally a Federal Circuit decision in 2002 – all arising from what should have been a settled case.

While this was a Park Police case, the GS system has a similar limitation on rates of payment for overtime. An exempt employee who earns more than GS-10, step 1 may only be paid overtime at a rate the greater of:

  1. His or her hourly rate, or
  2. The hourly rate for a GS-10, step 1.

(This limitation does not apply to wage employees or non-exempt employees.)

Review OPM’s guidance on Title 5 overtime pay.

Pay retention. In Day v. Air Force, 78 MSPR 364 (MSPB 1998), the agency removed a GS-9 supervisory art specialist under 752 procedures. The settlement agreement cancelled the removal, provided back pay, and required withdrawal of the appeal. Then the agreement went off the rails. The agency agreed to assign the employee to a WG-7 position with GS-9 pay retention, step increases, and other adjustments at the GS-9 level.

There are so many problems here, it’s hard to know where to start.

First, the basics. Pay retention is paid under 5 CFR 536. 5 CFR 536.102(b) sets conditions when payment of grade or pay retention is prohibited. The first situation on the list is when the employee is reduced in grade or pay for personal cause or at the employee’s request. Given that Day was removed for cause and this alternative of a downgrade was reached to resolve the ensuing litigation, it would seem to me that pay retention was never appropriate to begin with. The Board didn’t dwell on this aspect of the case. There was another problem.

Under pay retention, an employee does not receive step increases. The individual’s pay is beyond the limit for the grade. It’s also important to note that an individual remains in pay retention basically until the pay scale catches up with them. They receive 50 percent of the annual cost of living increase each year. Again, contrary to the language in the agreement, Day could not receive “other adjustments at the GS-9 level.”

There was even discussion during the enforcement proceedings that, perhaps, the agency should give Day grade retention. Even if that were appropriate (it seems very clear it’s not appropriate, per OPM guidance), grade retention lasts only two years. Then the individual would go into pay retention, so the agency would be right back in the same conundrum then.

DoD has a useful plain language document on the ins and outs of grade and pay retention. 

Without understanding the fine points of how the wide variety of pay issues are handled, an advocate might be lured into agreeing to something that is contrary to the pay laws in Title 5 just as the representatives in Farrell and Day did. To avoid this problem, make sure HR practitioners are available to assist agency representatives with settlement details so the provisions agreed to can actually be implemented.

 

The Good News: Here’s the Secret to Handling Problem Employees

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By Ann Boehm, April 17, 2023

As a FELTG instructor, I regularly hear comments from class participants. Supervisors often tell me they are frustrated by what they perceive as lack of support from the Human Resources (HR) professionals. But HR professionals often tell me that they aren’t psychic, and they cannot help supervisors who do not reach out to them and seek their help in dealing with a problem employee.

What we have here is a communication problem. Effective communication requires both talking and listening. And at its core, in the Federal personnel world, effective communication requires the supervisors and the HR professionals to listen and hear with the common goal of taking care of the agency’s mission by taking care of problem employees.

How do we improve the communication between managers and HR?

Let’s start with the talking. Supervisors need to reach out to HR when they first start realizing they have a problem employee.

Don’t delay – odds are that the problem is not going to go away. Allowing the situation to fester just leads to frustration, and even may complicate the process for handling the problem employee.

In addition, supervisors need to explain not just the issues with the employee, but how it impacts the supervisor’s job, their employees’ ability to perform their jobs, and – here’s that word again – MISSION. Supervisors, you cannot expect HR professionals to understand your workplace. They support people in very diverse areas of the agency. You need to educate them about the practical impact of the problem employee’s actions. And fundamentally, you need to ask them to help you.

Let’s now turn to listening. HR professionals, please listen to the supervisors and try your level best not to respond with, “You can’t do that.” You need to appreciate that when the supervisor comes to you, they are frustrated with the employee. You need to focus on how you can help them.

It’s highly likely that the supervisor will not understand the intricacies of discipline or performance in the Federal government, and their initial instincts may be a wee bit off base.

But HR professionals need to work with them to get them to a place of comporting with the law and still taking action to take care of the problem. Instead of “You can’t do that,” think about what steps can be taken to get on the path to successfully handling the problem employee. It’s your turn to educate them.

This sounds very simple, right? And in practice it should be. So, let’s review:

1) Supervisors, reach out to HR as soon as you realize you are having problems with the employee. Educate them on not just the employees’ problems, but the impact on your workplace.

2) HR professionals, use your skills to help the supervisor get on the right path to properly handling the problem employee. Appreciate the supervisor’s frustration and think creatively about the best way forward.

3) Supervisors and HR professionals, realize that the ultimate goal is to ensure the agency’s mission is fulfilled.

I know I’m an eternal optimist, but I truly believe that better communication is an easy way to handle problem employees.

And that’s Good News. Boehm@FELTG.com

Forecast Calls for Category 1-3 Harassment: What Will You Do?

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By Dan Gephart, April 17, 2023

It’s no secret the current administration wants the Federal workplace to be more inclusive. A key to achieving that goal is rooting out harassment. This is not a new concern. Several years ago, agencies started their own anti-harassment units, which don’t fall always under the auspices of its EEO Office. These anti-harassment teams are charged with limiting harassment of all types – even those that don’t result in legitimate claims of discrimination.

For years now, the EEOC has been emphasizing the need to address the broader range of harassment, noting time and again that without an exhaustive anti-harassment policy, agencies cannot be model EEO employers. You’d be hard-pressed to find an agency today that doesn’t have some type of anti-harassment policy.

Yet too many people still think harassment is solely an EEO issue. Not us here at FELTG. If you’ve attended any of our courses that address harassment, you’ve heard FELTG President Deborah Hopkins and other instructors say quite clearly: Harassment is misconduct. It must be addressed, whether it has led to an EEO complaint or not.

And whether alleged harassment goes through the EEO process or not, an investigation will likely be required. FELTG offers numerous opportunities to improve your investigations skillset over the next few months, beginning with the three-day virtual program Conducting Effective Harassment Investigations April 25-27. Workplace Investigations Week will be held August 14-18, and the two-hour training Misconduct Investigations: Get Them Right From the Start takes place on July 25. Also, be on the lookout for the official announcement soon of Bad Detective: The Mistakes That Hamper Agency Investigations with special guest presenter Roslyn Brown. That session will take place on Aug. 4, as part of FELTG’s annual Federal Workplace: Accountability, Challenges, and Trends event.

Let’s look at different categories of workplace harassment. The actual steps you need to take after each type of harassment are different. Regardless, take all harassment claims seriously and act promptly.

Category 1 – EEO harassment. An allegation has been made that someone has engaged in harassing behavior due to the complaining employee’s protected category. (To recap: Those protected categories are sex, race, color, national origin, religion, genetic information, disability, age, participation in protected activity). Could this be a legitimate complaint of EEO discrimination? It very well may be, but at this point, it’s still too early to tell. The person alleging harassment has 45 days to make contact with an EEO counselor. But you will need to investigate right away, whether they contact a counselor or not.

Category 2 – Actionable EEO harassment. Once the formal complaint is filed and the EEO office accepts the claim, the agency is on the clock. It’s time for a prompt, thorough investigation to determine the facts: was there unwelcome conduct, based on a protected category, so severe or pervasive it created a hostile, intimidating or abuse work environment?

Category 3 – Non-EEO harassment. Is it just me or does it just seem like bullies are pouring out of the woodwork lately? Mocking an individual’s work habits. Giving co-workers unflattering and unwanted nicknames. Pestering a peer repeatedly with requests to go on a date. Sometimes it’s hard to fathom the sheer gall of these bullies.

That’s not to say that these actions never meet the elements of proof for EEO harassment. They may. But smart bullies (there are a few) seem to know how to stop short of those requirements. Yet just because these actions may not lead to a legitimate EEO complaint doesn’t mean they should be overlooked.

Other examples of non-EEO actions to keep an eye on are conduct that is unprofessional, threatening, intimidating, violent, and disturbing.

Category 4 – Not harassment. The final category covers actions that are not harassment, despite what employees say. Several agency officials have told us of an increase in complaints lodged against supervisors for actions that are, quite frankly, what you’d expect a supervisor to do.

  • Assign work.
  • Set deadlines.
  • Create a work schedule.
  • Assess performance or providing feedback.
  • Manage work groups.
  • Set a dress code.

Just because an employee disagrees with his supervisor’s management style does not make a case of harassment. If the actions listed above are “exercised in a reasonable and professional manner,” they are not harassment. The same goes for any other actions supervisors have the right to take based on 5 USC 301-302. Deb Hopkins’ article from a few months ago addressed these faux claims.

Here’s the takeaway: Do whatever you can to prevent harassing conduct in the workplace. If you do that, harassment won’t happen, right? No, of course harassment is still going to happen from time to time. And when it does, know your options and responsibilities to correct the conduct before it happens again.

Also, it sure wouldn’t hurt to get to know your agency’s anti-harassment policy a little better. Gephart@FELTG.com