The Good News: With Weingarten, The Law Is Enough!

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By Ann Boehm, October 18, 2022

Once again, I’m writing about the Weingarten union representation right. This time I want to emphasize something that may seem overly obvious: Stick to the law!

Let’s start with a refresher about the statutory language. The Weingarten right is established in 5 U.S.C. § 7114(a)(2)(B).  To trigger the Weingarten right, there has to be an investigation by the agency. That typically means a misconduct investigation. If there’s no investigation occurring, you can pretty much stop there—no right to a union representative.

If there is an investigation, the next consideration is whether the representative of the agency is examining a bargaining unit employee, or to put it another way, asking questions. No questions, no right to representation.

If there is an investigation, and there is an examination of a bargaining unit employee by an agency representative, the employee still has to reasonably believe that disciplinary action against the employee could result from the examination in order for the employee to have a right to union representation in that meeting. No reasonable fear of disciplinary action, no right to union representation.

One big part of the statutory Weingarten right is this: The employee has to request a union representative. The agency representative has no statutory obligation to notify the employee of their right to representation (other than the agency’s an obligation to inform employees of the right annually). It’s up to the employee to seek the representation. No request for representation, no right to representation.

Here’s a problem I discovered during a recent training session. An attendee said, “Our attorneys strongly suggest we advise the employees of their Weingarten right.” Good heavens! Why in the world would that be a good idea? The statutory language makes it crystal clear that the agency representative does not have any such obligation.

Another way the agencies and unions go beyond the statutory language is by negotiating into the collective bargaining agreement an obligation on the agency to inform the employee of the Weingarten right before questioning an employee during an investigation. Good heavens! Why in the world would that be a good idea? Congress did not require it, so why agree to more than what Congress established in section 7114(a)(2)(B)?

There is really no practical reason to go beyond what the Statute says. In the worst-case scenario, if the agency proceeds with an interview without allowing the union representation, a typical unfair labor practice remedy would be to order a re-do of the interview with a union representative present (the “interview remedy”). The interview remedy may not even be necessary. A 2018 case from the FLRA indicates an interview remedy is not necessary if the Weingarten violation did not negatively impact on the outcome for the employee. U.S. Dep’t of Justice, FBP, FCI Englewood, 70 FLRA 372 (2018).

In FCI Englewood, the employee tested positive for marijuana on a random urinalysis drug test. The agency investigated his drug use, and a urinalysis retest confirmed the original results. When the agency interviewed the employee about the drug test, he requested a union representative. A union representative attended, but the agency investigator told the representative to stop asking questions. The employee then admitted to using marijuana. The agency removed the employee from his position, and the union filed a grievance challenging the removal. The arbitrator reduced the penalty to a 14-day suspension.

The union also filed an unfair labor practice charge, claiming violation of the Weingarten right based on the agency’s refusal to allow the union representative to participate actively. The General Counsel filed a ULP complaint. The Administrative Law Judge found the agency committed a ULP, and ordered an interview remedy.  Id. at 373.

The agency challenged the ALJ’s interview remedy, claiming that it would be a duplication of effort and resources, and the FLRA agreed. The FLRA explained that the interview remedy would be appropriate if allowing the union representative’s participation would reasonably suggest no discipline would have been imposed. But in this case, “there is no dispute that some type of discipline was justified” because the employee tested positive for marijuana use. The FLRA set aside the interview remedy. Id.

The law provides enough protection for the employee. Agencies, you do not need to go beyond that. And that’s Good News! Boehm@FELTG.com

‘Government Careers are Retirement Schemes for the Incompetent’

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By William Wiley, October 18, 2022

Oh, did you like that one?

Well, how about this: “Federal employment is basically welfare with an attendance requirement, but not a very strict one.”

Are you offended yet?

No?

Well you just might be if you read any more of the hundred or so comments relative to a recent media piece on the cable network MSN, entitled Afraid of Being Fired? Consider Working a ‘Forever Job’ with the Federal Government.

If you read the article in its entirety, you probably won’t find anything new. It’s a word salad of labor/employment terms, put together to gain the attention of readers who are predisposed to have a negative view of Federal civil servants. Take several labor/employment terms, throw them together in a scary way and voila! you have an article that makes people angry. And anger gets clicks. One of the saddest realities of life is that a lot of people would rather read something that gets them angry or reinforces a predisposition that they already hold rather than read something that might provide new information to consider.

This human tendency is nothing unusual. I remember a psychological study from the 1970s that looked at the viewing habits of people the weeks after they had bought a new car. Most people tended to pay closer attention to and view ads for longer if they were advertisements for the make of automobile that they had just bought even though they had already committed to that brand. They weren’t looking for new information for a future purchase. Rather, they were looking for confirmation that the make of car they had just bought was as cool as they thought it was. Psychologists call this tendency “confirmation bias,” a term you might have picked up on in your undergrad “Introduction to Psychology” course (if you hadn’t still been recovering from your party-full weekend).

Although reinforcement of a previously held belief isn’t a bad thing in itself, there is a dark side if you think about it. When someone spends time reading things that they agree with, they may forgo spending additional time to read something else with which they do not agree that could be helpful. If you bought a new Ford and then read car ads only about Fords, you might neglect to read that article that provides evidence that a Toyota is a better long-term investment. That would be helpful information for you the next time you buy a car.

With this background in human behavior, how should those of us who believe that the Federal civil service is an honorable, hard-working, and honest calling respond when someone confronts us with this kind of misinformed nonsense? Well, being experts at firing bad people from government, and with a touch of background in psychology, we here at FELTG humbly suggest the following:

  1. As a society we want it to be harder to fire a civil servant than a typical employee in the private sector. That’s to protect us citizens from a government composed of partisans interested mainly in their personal philosophy. Try out this thought experiment: If you are a conservative, do you really want a government filled with a bunch of socialist liberals giving away our tax dollars to dangerous undocumented immigrants? Or, if you are a liberal, do you really want a government filled with a bunch of fascists giving away our tax dollars to fat-cat billionaire polluters? If we did not have extra protections for career civil servants, every time we changed from a liberal to conservative White House, we could expect a significant change from one biased civil service to another biased civil service. The extra protections provided by law to Federal employees is intended to keep that sort of patronage from happening.
  2. Career civil servants have already proven themselves to be above average employees, theoretically among the best and the brightest. First, they have won a merit-based competition for their jobs. Then, they have survived probationary periods (during which they can be summarily dismissed) that are much longer than probationary periods in the private sector: one, two, and sometimes of even three years in length. After surviving these hurdles, a claim that they can no longer do a good job should receive scrutiny. They have proven themselves to warrant continued employment. There should be proof when it is claimed that they do not.
  3. These extra-protections that career civil servants have by law are not really that onerous for an employing agency IF the agency knows what it is doing. Here is all that it takes to fire a bad government employee:
    • The supervisor has to tell the employee what to do. That can be done by giving the employee performance standards or work instructions. There’s no particular form this notification must take. It can be as simple as an email or even oral direction. It would be hard to argue that an agency should be able to fire an employee for not doing something that the supervisor never said had to be done.
    • If the employee makes a mistake and does not do what the supervisor says needs to be done, the supervisor has to tell the employee about the mistake and usually has to give the employee the chance to behave correctly. This can be done through the initiation of either progressive discipline or a performance improvement plan. Unless the employee’s mistakes are causing significant harm, sometimes this might take two warnings. But hardly ever any more than that. Yes, this is more than is required in the private sector where an employee can be fired for a first offense of coming to work five minutes late. But given the goal of our society of having a neutral, non-political civil service, this extra step should not be a big deal.
    • If the employee continues to make mistakes, the supervisor has to give the employee written notice of what has been done wrong and allow the employee to offer a defense or explanation. Once the supervisor issues this notice, the employee must be paid for another 30 days, although there is no mandate that the supervisor keep the employee in the workplace to make even more mistakes. When the law was passed to require this 30-day paid notice period, one of the sponsors of the bill said that 30 days of salary would act as a type of severance pay, allowing the individual some time to find another job. You and I may not think such largess is warranted, but we still would need to concede that these last couple of pay checks are not a significant bar to firing the employee.

That’s it. The employee is now off the government payroll and once more a private citizen. There are a few exceptions and twists to the above, e.g., sometimes the supervisor needs to give the employee only 7 days of a paid notice period instead of 30, or maybe the harm caused by the employee is so significant that there is no need to give the employee a second chance. However, in most situations, not much different from the above is required from one case to the next.

Once the employee is fired, the agency may have to produce evidence that the removal was justified. And for Federal civil servants, “justified” means that it is either probable or possible that the individual really was a bad employee. These are significantly lower burdens of proof than the oft-cited “beyond a reasonable doubt” proof burden required in criminal cases. If a supervisor cannot come up with either preponderant or substantial evidence of bad employee performance or conduct, then the protections against unfair treatment for Federal employees do their job and the employee is entitled to be restored to the government payroll.

In 1883, Emma Lazarus wrote: “Give me your tired, your poor, your huddled masses yearning to breathe free.” In recognition of the 44th anniversary this October of the Civil Service Reform Act of 1978, the law that defined these civil service protections above and made it relatively easy to fire a bad government employee, with apologies to Ms. Lazarus, I would say, “Give me your incompetent, your lazy, your no-good civil servants who think they are on welfare in a forever job.” Using the procedures in the CSRA, a FELTG-trained practitioner can take it from there.

So, if I’m so darned smart, why don’t I do that for you? Hey, I’m retired! Ain’t nobody got time for that. Wiley@FELTG.com

Know the Warning Signs of Employee Stress and What You Can Do to Help

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By FELTG Staff, October 18, 2022

Project deadlines, that one co-worker who rubs you the wrong way, work-life balance, worries about keeping your job. Sometimes, the stress of work can feel overwhelming. Even with a low unemployment rate, which allows workers more choice in job selection, people are feeling more stressed out than ever when dealing with workplace issues.

We sat down with Shana Palmieri, LCSW, FELTG Instructor, and Chief Clinical Officer and Co-Founder of XFERALL, to find out how managers can help employees ease the tension they have at work.

FELTG: What are some of the more frequent causes of workplace stress?

SP: Reports of stress in the workplace reached an all-time high in 2021 at 43 percent, up from 31 percent in 2009 and 38 percent in 2019.

The impact on employees and employers is significant. Workplace stress leads to employee disengagement.

Current employee disengagement rates are at 50 percent, resulting in a significant loss of employee productivity. Job-related stress is estimated to cost United States Industry $300 billion annually in diminished productivity, absenteeism, and accidents. The main causes of workplace stress are:

  • 39 percent report their workload
  • 31 percent report interpersonal issues/conflict in the workplace
  • 19 percent report juggling work and personal life
  • 6 percent report job security

FELTG: How can supervisors and managers help employees deal with workplace stress?

SP: Based on all-time record highs of employee stress in the workplace and disengagement, it is critical for employers to focus on employee well-being and engagement.

Key recommendations include:

  • Add employee well-being to executive dashboards.
    • Key measurements may include employee engagement, economic cost, turnover rates, productivity, healthcare and disability costs, company reputation, employee attitudes and well-being.
  • Formalize and prioritize employee well-being programs.

It is important to assess and address potential risk factors for employee stress and disengagement:

  • Poor team cohesion
  • Lack of clarity in strategy or objectives
  • Insufficient employee support
  • Hostile work environment, bullying, harassment
  • Employees having little or limited control over their work
  • Poor management and weak communication styles
  • Inflexible work hours/limited PTO
  • Poor safety policies/health risks at the workplace

Employers will improve well-being and reduce disengagement by proactively creating a workplace culture that promotes physical and mental well-being and implementing practices that drive employee engagement.

FELTG: What are some of the warning signs managers and supervisors can look for in  employees which might indicate employees need professional help?

SP: High levels of stress can lead to burnout, mental health conditions and substance abuse. Some warning signs employees may need professional help include:

  • Increasing use or abuse of substances
  • Increased social isolation
  • Increased agitation, low frustration tolerance (can be a sign of depression)
  • Low mood with apathy, difficulty making decisions, tearfulness
  • Increased anxiety
  • Reports or comments concerning suicidal thoughts
  • Extreme fatigue in combination with significant changes in mood
  • A significant change in work productivity and/or decreased quality of interactions in interpersonal relationships

If an employee makes threats to harm themselves or others, it is important to obtain immediate assistance available by calling 911 or the 988 crisis line.

[Editor’s note: For further insight on how to help your employees deal with stress, join Shana on Thursday, March 23, 2023 from 1:00-2:00 PM ET for Grappling with Employee Stress in the Workplace: Improve Performance and Morale in Your Agency.] info@FELTG.com

Conditions of Employment Revisited: VA Priest’s Case Didn’t Have a Prayer

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By Barbara Haga, October 18, 2022

I have written several articles about conditions of employment over the years. They are typically simple cases processed under 5 USC Chapter 75. The newly constituted Merit Systems Protection Board ruled on one of these cases in September. I think it’s worth looking at the issue again since this topic comes up in many of my training courses.

If it is a condition of employment that an employee possess, obtains, and/or maintains a license, certification, or membership status, then failure to comply is the basis for the adverse action.

To win these cases, you would need to show:

  • The employee occupied a job requiring the certificate, license, or status,
  • The employee failed to obtain or lost the certificate/license/status, and
  • If the agency controls granting this certificate/license/status, the agency decision was made in accordance with agency procedures.

In Gallegos v. Department of the Air Force, 114 FMSR 185 (MSPB 2014), the Board wrote the charge of failure to meet a condition of employment contains two elements: (1) the requirement at issue is a condition of employment; and (2) the appellant failed to meet that condition. “Absent evidence of bad faith or patent unfairness, the Board defers to the agency’s requirements that must be fulfilled for an individual to qualify for appointment to, or retention in, a particular position.”

If the employee engaged in some misconduct that led to the loss of the license or certification granted by a third party, such as off-duty misconduct that led to the loss of membership in the bar, the agency is not required to prove anything about the underlying reasons for loss of the membership, but instead must show that the person no longer has whatever the credentials are that are necessary to fulfill the duties of the position.

‘Possessing Faculties’

In my April 2019 column, I discussed conditions of employment in several different types of cases, one of which involved a Catholic priest.

That case was Ezeh v. Navy, 114 FMSR 13 (NP) (MSPB 2013). The condition of employment in that case was possessing “faculties,” the authority to provide ministry to military members through sacraments of reconciliation, baptisms, weddings, annulments, and parish funerals, and to perform Catholic mass.

The determination to grant or deny faculties was made not by the employing agency but by the Archbishop of the Military Services (AMS), which is not a Federal position, but a position within the Catholic church. AMS is the sole endorser of Roman Catholic priests serving in positions such as that held by Chaplain Ezeh.

In this case, there is no information in the decision about the reasons behind the Archbishop’s determination to terminate Chaplain Ezeh’s faculties.

The new Board issued a decision on a similar set of circumstances, but in this case the information on which the termination of faculties was based is included. The case is Dieter v. Department of Veterans Affairs, 2022 MSPB 32 (September 2022). Chaplain Dieter worked at a VA Medical Center in Florida.  His position was subject to the same requirement as Chaplain Ezeh’s position discussed above, including the requirement to have faculties granted by the AMS. [Editor’s note: Attend Back on Board: Keeping Up with the New MSPB tomorrow (October 20) from 1-3 pm ET.]

The events that led to Dieter’s removal began with a statement he made during Mass. His homily included the following statements:

  1. During the early hours that morning, Dieter received a call from a 95-year-old veteran he knew, and the veteran stated that he was being burglarized at that moment.
  2. Dieter phoned the police then went to the veteran’s home and entered, where he saw two young men in the home and confronted them.
  3. Dieter hit one of the young men and knocked him out. He was wearing the Roman collar at the time he knocked out the young man. He verbally demanded that the other young man get on the floor.

Someone in the congregation recorded a video of the homily. The statements were reported to the chief of chaplains. He reviewed the video and came to certain conclusions, including that Dieter failed to exercise good judgment in revealing information during Mass about the burglary and his response, including potentially being responsible for assault and battery of a minor. The chief of chaplains noted that Dieter presented himself as the rescuer of the weak and powerless and a hero and prided himself as a Roman Catholic priest for having beaten a young man.

Scope of Review

Dieter later said the statement was not true. The reviewing authorities found the statement in the homily to be totally inappropriate whether true or not. Dieter’s ability to serve as a Catholic priest was terminated.

In the initial decision, the AJ notified Dieter the scope of the review was “… was limited to determining whether (1) the appellant’s position required an ecclesiastical endorsement; (2) the ecclesiastical endorsement was denied, revoked, or suspended; (3) the agency provided the appellant with the procedural protections specified in 5 U.S.C. § 7513; (4) the agency complied with its own regulations regarding the matter; and (5) the agency afforded the appellant due process with respect to its decision to remove the appellant.”

Dieter’s arguments focused on two main points. First, because he indicated the information in the homily wasn’t true, management violated his rights by not conducting an appropriate investigation into the misconduct before it was reported to Catholic officials. He said that “… if the agency had interviewed him before it provided information to the AMS, he would have ‘had the opportunity to set the record straight that the homily was fictional, and he had not assaulted a minor.’”

Had that happened, he alleged that it “may well have stopped the agency’s liaison to the AMS from sending the information to the AMS or may have been sufficient to convince the AMS not to withdraw his endorsement.”

The Board noted that Dieter had “… no property or liberty interest in his ecclesiastical endorsement, and, therefore, the agency’s failure to conduct an investigation prior to communicating with the AMS did not implicate any due process concerns.”

Secondly, Dieter noted in his oral reply that he could not adequately defend himself without information regarding AMS’s decision to withdraw his ecclesiastical endorsement. The AJ dealt with this matter in the initial decision stating: “Because the agency relied on the loss of the appellant’s endorsement as the basis for its action, it was not required by the dictates of the due process clause to provide the appellant with notice of the matters the Archdiocese may have considered in reaching its decision to withdraw the appellant’s ecclesiastical endorsement and faculties.”

The Board further addressed the issue: “We agree with the administrative judge’s determination that the Board lacks the authority to review the AMS’s decision to withdraw the appellant’s ecclesiastical endorsement and is, in fact, precluded from doing so by the First Amendment.”

Don’t Forget the Accommodation of Last Resort

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By Deborah Hopkins, October 18, 2022

In our Reasonable Accommodation training classes, we at FELTG focus on the framework set out in the law. It’s the best way to ensure your agency is handling every request appropriately. Here’s the basic approach once it’s been established the employee is a qualified individual with a disability. This is the approach that FELTG founding father Bill Wiley calls the Accommodation Three-Step:

  1. Look for a reasonable accommodation that will allow the employee to perform the essential functions of the job (by engaging in the interactive process) without causing an undue hardship.
  2. If accommodation is not possible, consider the accommodation of last resort: a reassignment to a vacant, funded position for which the employee is qualified, at the current grade level.
  3. If nothing is available at the employee’s grade level, look for a vacant, funded position at a lower grade level.

A recent case, Shanti N. v. IHS, EEOC Appeal No. 2019004882 (Sept. 14, 2021), illustrates how problematic it can be when an agency stops at Step 1. In Shanti N., the employee, a GS-9 staff analyst, requested full-time telework to accommodate her medical conditions (TBI, PTSD, and pregnancy). Her supervisor denied the request because in 2017 when the events of this case occurred, staff analysts were required to be in the office full-time because of the customer service nature of their positions.

(This might be a good time to mention that things have changed since then, and FELTG is holding a class on November 17 titled Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency, where we’ll discuss how telework has altered Reasonable Accommodations – and much much more.)

Back to Shanti N. Once her telework request was denied, she requested a reassignment to a telework-friendly position. Her supervisor agreed, but then made no effort to conduct a search for a vacant, funded position.

According to the case, agency HR “experienced difficulties in completing the reassignment process because [the agency] had a policy of giving absolute hiring preference to Native Americans and Alaskan Natives and Complainant was neither.” The supervisor then explained that it would be difficult to reassign the complainant to another position in the agency because the complainant would have to compete for a vacant position and would be discounted by a candidate with “Indian Preference.”

On the alternative side, the complainant exercised her diligence and actually identified several positions for reassignment in another subcomponent of the agency. When she made these suggestions, the agency indicated it would be unable to complete the reassignment, and that it was on the complainant to obtain and secure the  reassignment on her own.

As you can imagine, the EEOC did not take this well. They found the agency did not meet its obligation to identify vacant reassignment positions, or to confirm whether the Indian Preference policy would actually prevent a reassignment.

In addition, the EEOC found that the agency had not shown that reassigning the complainant would be an undue hardship, and it failed to engage in a good faith search for a reassignment, which violated the Rehabilitation Act.

A simple mistake that ended up being quite costly, not just to the agency but to the employee as well. Don’t let it happen to you. Hopkins@FELTG.com

And Now a Word With … Former EEOC Commissioner Christine Griffin

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By Dan Gephart, September 26, 2022

When Christine Griffin (photo, right) started her tenure as a commissioner at the Equal Employment Opportunity Commission in 2005, she had a long list of things she wanted to work on. Despite her previous work with the Boston Disability Law Center, the Federal employment of people with disabilities was not at the top of that list.

That quickly changed.

“After learning early on that people with disabilities, and more specifically, targeted disabilities were not represented in the Federal workforce in any meaningful numbers, I decided that should be my focus,” Griffin said. “I always believed that government should live up to the ideals that it was telling everyone else to live up to.”

During her time at EEOC, Griffin and a team of attorneys that included Steve Zanowic and Jo Linda Johnson, developed the LEAD Initiative (Leadership for Employment of Americans with Disabilities) with two goals:

  • Increase awareness of the issue.
  • Increase the number of people with targeted disabilities working for the Federal government.

LEAD laid the groundwork, and numbers have steadily risen. The overall participation rate of individuals with targeted disabilities increased from 1.05 percent in 2003 to 1.80 percent in 2019. Meanwhile, 12 of 28 independent agencies, 11 out of 17 cabinet departments, and 34 out of 98 subcomponents of cabinet departments are meeting the 2 percent goal. In 2016, only 10 independent agencies and subcomponents reached that goal.

Griffin took that work to the Office of Personnel Management five years later when she became the agency’s Deputy Director. Her most memorable moment, she said, was sitting next to President Obama the day he signed Executive Order 13548, aimed at increasing the employment of individuals with disabilities.

“I think it has taken a long time,” Griffin said, “but the work we did at EEOC to create awareness coupled with the Executive Order from President Obama made Federal agencies more accountable. What is measured is treasured and having someone at the highest level ask for those measurements through EEOC and OPM makes a difference.”

At OPM, Griffin’s team created the first government-wide Diversity and Inclusion Work Group that led to the development of the first government-wide diversity and inclusion strategic plan. And there was another first. Griffin and then EEOC attorney Veronica Villalobos set up OPM’s Diversity and Inclusion Office at OPM. [Editor’s note: Another member of that team was J. Bruce Stewart, who will be presenting The Power of an Inclusive Mentality on November 8.]

Griffin is currently senior executive search consultant at Bender Consulting Services, Inc.

DG: What impact has the pandemic had on reasonable accommodation in the workplace?

CG: The most beneficial impact that the pandemic had was to prove to employers that employees can work from home and be productive. With the amazing technology we have access to, there are very few jobs that can’t be done remotely. I think that came as a shock to many who always thought working from home was a boondoggle. I believe that this will prove to continue to have a significant impact on the reasonable accommodation requests to work from home for people with disabilities. This request will be difficult for employers to deny going forward and hopefully difficult for judges to uphold those reasonable accommodation denials, since even they learned how to work remotely.

DG: Why is it important to revisit existing reasonable accommodations — and how often should that be done?

CG: It is important to revisit reasonable accommodations because of the rapid advances in technology that allow more people to enter and remain in the workforce. I can’t think of one disability that would prevent someone from becoming employed. We don’t need our limbs and senses for most jobs and if we think differently, that is usually a plus for employers. I think an annual review of accommodations would be useful for the employer and employees alike. Just an annual check in with an employee to see how the accommodation is working and if there is something that could be changed, tweaked, etc., to make the employee’s and the employer’s experience better.

DG: What should agencies be doing (or doing better) when recruiting employees with disabilities?

CG: The first thing agencies must do is establish a plan to increase the hiring of people with disabilities that is endorsed at the highest level. Schedule A makes it so easy for Federal agencies to hire people with disabilities without going through a lengthy competitive process. When I was at OPM, we developed the Shared List – a list of people with disabilities who were Schedule A eligible and ready to go to work. This list was populated by Bender Consulting, who found individuals with disabilities with the skills requested by the CHCOs. Agencies had access to the list and could search for the person with the skills they needed. OPM stopped funding that list, and Federal agency personnel are still calling and asking where it is. For now, agencies can contract with Joyce Bender, CEO of Bender Consulting, to help them find the candidates with the skills they need. Bender has been working with agencies for more than 20 years to help them recruit and hire individuals with disabilities.

DG: On the flip side, individuals with targeted disabilities are leaving the government at twice the rate as those without disabilities. Where do you think agencies are failing?

CG: I think some Federal agencies have failed to create the inclusiveness necessary to keep any employees who bring diversity to the workplace. People leave a workplace when they don’t feel valued, and that includes employees with disabilities. We used to say that they will hire you because you’re different (check off a box) and get rid of you for not being the same. I also think that people with disabilities in the Federal government don’t enjoy the same opportunities for advancement. If they can seek that advancement elsewhere, if they feel more valued elsewhere, they will leave.

[Editor’s note: Register for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency on November 17, starting at 1 pm ET.] Gephart@FELTG.com

WIGI Documentation Can Justify a PIP Under Santos

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By Deborah J. Hopkins, September 19, 2022

I don’t know about you, but I am still loving the fact that we have a fully functioning MSPB again. While you might be tempted to skip over the non-precedential (NP) cases, you should rethink that because we have found several jewels in NP cases over the past six months.

One of the the trends we’ve seen in 432 actions – performance-based removals and demotions – is that the MSPB has been remanding cases if the record doesn’t contain substantial evidence of unacceptable performance that justified the agency’s decision to place the employee on a PIP. And because that requirement didn’t exist until March 22, 2021 (Santos v. NASA, No. 2019-2345, Fed. Cir. Mar. 11, 2021; see also Singh v. USPS, 2022 MSPB 15 (May 31, 2022)), most of the 432 cases are being remanded on this point. Santos never explicitly stated what types of evidence agencies could use to justify the PIP, instead ruling, “we are not prescribing any particular evidentiary showing with respect to the employee’s pre-PIP performance. Performance failures can be documented or established in any number of ways.”

So, one of the items that jumped out at me in a brand-new case (Slama v. HHS, SF-531D-15-0266-I-4; SF-0432-16-0496-I-1 (Aug. 24, 2022)(NP)) is we now know at least one type of evidence the Board will consider in pre-PIP unacceptable performance determinations.

A bit of history first: In Slama, the appellant’s performance problems started in 2011. Bigger problems emerged in performance year 2013, and he received a Level 1 summary rating in 2014. His unacceptable performance that year led to the denial of a Within Grade Increase (WIGI), which he appealed to the MSPB. For reasons not explained in the case, the appellant was not put on a PIP until 2015 after he received yet another Level 1 summary rating. The appellant failed the PIP and the agency removed him later that year. He appealed … and into the backlog the new case went.

Fast forward to 2022, the return of the quorum, and the new Santos requirement. In Slama, the MSPB joined his two appeals (one over the WIGI denial and the other over the 432 action) and, among other things, decided that the material that forms the basis of a WIGI denial can also be used to justify a PIP and meet the Santos requirement. According to the case:

The administrative judge found that the agency demonstrated by substantial evidence that, before being placed on the PIP, the appellant’s performance in the critical elements of administrative requirements, communication, and technical competence was unacceptable [citation omitted]. The administrative judge based her finding largely on the same facts and analysis under which she had affirmed the agency’s [acceptable level of competence] determination in connection with the WIGI denial. ¶25

While WIGI denials are rare, it’s quite interesting (and time saving) that the Board will rely on that same content to show the agency can justify the PIP. It might be helpful for those of you handling the 432 remands to check the WIGI files and see if you have anything you can use. And then join me for Back on Board: Keeping Up with the New MSPB on October 20. Hopkins@FELTG.com

Employees Can Be AWOL Even if at Work or Working Elsewhere

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By Dan Gephart, September 12, 2022

Only six percent of American workers who have been teleworking since the pandemic began want to return to the physical workplace, according to a recent poll.

You know that there are more than a handful of people at your agency who feel the same way. What if one of those employees just never came back to the physical workplace and just kept working from home. What would you do?

Let me spell it out for you.

A-W-O-L.

But they’re still working, you say. Yes, but are they working in the location where they were told to report? No? Well then it looks like you have a clear-cut case of Absence Without Leave.

As FELTG President Deb Hopkins pointed out during the recent training session What You Think You Know About AWOL is Probably Wrong, there are foundational MSPB cases going back to the 1980s on AWOL. The newly quorumed MSPB has already decided AWOL cases. And there are so many AWOL cases in between that you should have little problem finding one with a similar fact pattern to yours. As Deb said during the training, “a lot of employees have gone AWOL over the last 40 years.”

Are you still hesitant to charge AWOL for an employee who works remotely despite orders to return to the physical workspace?  Well, the MSPB has ruled that an employee doesn’t even need to be “absent from the work site to be found AWOL.” Buchanan v. Dep’t. of Energy, 247 F.3d 1333 (2001).

There are several examples of this, including the employee successfully charged with AWOL for conducting personal business while on duty (Mitchell v. DoD, 22 MSPR 271 (1984)) and the employee removed via AWOL for sleeping on the job. Golden v. USPS, 60 MSPR 268, 273 (1994).

And then you have Mr. Lewis. The Bureau of Engraving and Printing employee, still seemingly dismayed by a change of shifts two years previously, refused to obey his supervisor’s order. He was told that he only should return to work only if he was “willing and able to report for duty.”

Lewis took his supervisor’s directive to mean that he was on “approved leave,” and could take his time to determine if he wanted to continue working. The agency disagreed with his assessment and charged him with AWOL. The MSPB agreed with the agency. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

If you missed Deb’s recent session, join us for Feds Gone AWOL: Understanding the Charge and Applying it Correctly, which will be held on October 6 from 1-2 pm ET, and get yourself up to speed on this important charge. Gephart@FELTG.com

EEOC Case Illustrates the Ugliness of Harassment Based on Disability

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By Deborah Hopkins, September 12, 2022

Members of the FELTG Nation are likely familiar with EEO cases where agencies fail to accommodate a complainant’s disability, but there’s another ugly side of disability discrimination that sometimes arises – hostile work environment harassment based on the complainant’s disability. We saw this in a fairly recent EEOC case, Damon Q. v. DOD, EEOC Appeal No. 2020003388 (Aug. 9, 2021).

Imagine you have a visible physical disability, and a high-level supervisor mimics your disability and the way you do your job in front of a room full of your co-workers. This exact thing – and more – happened to a supply technician at DLA, a left-hand amputee who, among other things, alleged:

  • During a safety re-enactment meeting in front of the workgroup, the Director mimicked the complainant’s physical disability by “put[ting] his arm up with his elbow bent” and demonstrating the way the complainant performed the task, which humiliated and embarrassed him.
  • After the meeting, the complainant approached the Director to talk to him about his conduct during the meeting, and the Director responded in an intimidating manner.
  • While walking away from the Director because of his intimidating response and mannerisms, the Director walked behind Complainant talking aggressively about his physical disability.
  • A few weeks later the complainant received an email from the safety representative stating that the complainant chose not to come to the regularly scheduled meeting because he did not want to participate in management meetings. This was a misrepresentation of his request to not be required to interact with the Director who had mimicked his disability.

EEOC looked at the facts of this case and disagreed with the AJ, who granted summary judgment for the agency. Interestingly, though, the Commission said the material facts were not in dispute and summary judgment was appropriate – for the complainant. The Commission found the agency created a hostile work environment because the unwelcome conduct based on the complainant’s disability was sufficiently severe or pervasive:

“…[W]e note that in evaluating whether the conduct is severe or pervasive enough to create a hostile work environment, the harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. (citation omitted). In this case, we note that Complainant attested that he felt threatened, embarrassed, and humiliated by the Director’s impersonation of him with his impairment during the safety reenactment. Complainant maintained, moreover, that the Director was also aggressive towards him after he complained to the Director that the mimicking of his disability was offensive towards him. We note that employees observed that Complainant and the Director engaged in a “heated” conversation after the reenactment, and a Material Handler attested that he observed the Director getting closer and closer to Complainant to the point of Complainant putting his arm up between the two of them. As noted above, the Director did not dispute that he demonstrated the crate inspection as if he had no left hand to show that Complainant was not properly performing the task…

According to Complainant, he was so humiliated by the Director’s mimicking of his disability in criticizing his performance in front of employees that he communicated to the Deputy Director, among others, that he no longer wished to attend meetings wherein the Director would be present. Rather than immediately addressing Complainant’s request and concerns of a hostile work environment, the Agency generated CAC meeting minutes noting that Complainant did not want to attend the meeting because he did not want to meet with management. Complainant further received emails wherein he was accused of having a conflict with management. Complainant believed that the meeting minutes and the emails cast him in a negative light, as he only wanted to be away from the Director and did not have a conflict with management as a whole. Upon review, we determine that a reasonable person in Complainant’s circumstances would find that management’s actions were severe enough to create a hostile work environment based on disability… (Damon Q., above, p. 8-9).

The EEOC found the agency liable because the actions were committed by a director and the agency did not take prompt, effective corrective action. When handling disability cases, be careful not to stop at reasonable accommodation, but also be aware that harassment isn’t part of the equation. We’ll discuss in more detail during the virtual event EEOC Law Week, September 19-23.  Hopkins@FELTG.com

The New Board Affirms Several Established Discipline Principles

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By William Wiley, September 12, 2022

Best practices in our business are worth restating on occasion, particularly when we get new adjudicators at MSPB. From an otherwise unremarkable recent Board final order, we are refreshingly reminded of the following principles related to federal employee discipline.

FACTS: During a discussion with an agency manager, the employee walked toward the management official, snatched a leave request form out of his hand, and then pushed the official’s hand down “in an aggressive manner.”

QUESTION: Can an agency fire an employee who does something this minor?

ANSWER: Yes, IF the agency knows what it is doing, see Stevens v. Navy, DC-0752-21-0412-I-1, August 5, 2022 (NP).

REAFFIRMED DISCIPLINE PRINCIPLES:

  1. A generic unlabeled charge is often better than a more specific labeled charge. If you have attended FELTG’s famous MSPB Law Week seminar, you know that an unlabeled charge of misconduct has no separate elements of proof; the agency need prove only the underlying misconduct. In comparison, a labeled charge requires that the agency prove both the underlying misconduct AND the elements of the definition of the specific charge. Here, the agency used the generic unlabeled charge of “unacceptable conduct.” Therefore, it needed to prove only the “FACTS” laid out above. On appeal, the appellant argued that the agency failed to prove that an “assault” or “threat” occurred. Because the agency avoided using the specific labels of “Assault” or “Making a Threat,” it had no obligation to prove the elements that define those specifically labeled charges. Therefore, the appellant’s argument failed, and the Board sustained the charge.
  2. Misconduct that occurred many months earlier can be disciplined without the charge being dismissed as stale. In this appeal, the appellant appeared to argue the equitable defense of laches. In that argument, an individual asserts that discipline cannot be administered because the misconduct occurred too far in the past prior to the initiation of discipline. Laches bars an adverse action when an unreasonable delay in bringing the action has prejudiced the party against whom the action is taken. The elements of a laches defense require proof of BOTH an unreasonable delay AND prejudice, e.g., there is no automatic bar to taking an action just because it occurred far in the past. The one-year delay in this case was found to be neither unreasonable nor prejudicial. In fact, MSPB has previously found that a delay of three or four years did not warrant reversal of the discipline ultimately administered. Therefore, the laches defense failed.
  3. It is safest if the deciding official (DO) does not discuss the proposed discipline with others prior to making a decision. Since the cooling of the Earth, we at FELTG have counseled that the agency is in the most defensible position if the DO considers only the materials in the proposal notice and the employee’s response when deciding what discipline is warranted. If the DO considers facts outside of these two documents, there is a chance the employee’s due process rights will be violated. Constitutional due process requires the agency tell the employee what facts the DO will be relying on so the employee can mount a defense to the proposed action. In this case, the DO did not follow our advice and discussed the pending discipline with others before making a decision regarding the proposal. However, because much of that discussion simply confirmed facts already in the proposal, there was no violation of due process. Separately, even though arguably the DO learned about facts not in the proposal, he testified that he did not rely on those facts. Based on a credibility determination, the judge held that the DO’s testimony was true and concluded that the appellant’s arguments were unpersuasive. The agency won this point on appeal. However, if the DO had not engaged in these ex parte discussions, the judge would not have had to assess credibility and the Board would not have had to review the undisclosed material to determine whether they contained new facts or simply confirmed existing facts in the proposal notice.
  4. A removal after a suspension will almost always be found to be a reasonable penalty. Progressive discipline is not a requirement prior to firing an employee for misconduct. However, if the agency has previously disciplined the employee, removal for a subsequent act of misconduct will almost always be found to be a reasonable penalty even if the later misconduct is relatively minor. This is particularly true if the second act of misconduct is a suspension (as it was here) and similar to the first misconduct (thereby establishing a pattern of misconduct). Always remember, it is not up to the Board to decide what the proper penalty should be. Rather, it is the Board’s responsibility to determine whether the DO properly weighed the relevant Douglas Factors and whether the removal penalty “clearly exceeded the bounds of reasonableness.”

You have three ways to learn basic principles like these: work in the business 10 to 15 years (learning from your mistakes as you go), read 43 years of Board decisions (plus the related decisions of the Federal Circuit Court of Appeals), or attend our FELTG seminars. When deciding which of these to undertake, keep one very important distinction in mind: At FELTG, you get free coffee. Wiley@FELTG.com