Can You Fire a Federal Employee Who Accidentally Eats a Pot Brownie?

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By Deborah Hopkins, February 13, 2019

We know intentional marijuana use, even for medicinal purposes, is a no-no for federal employees (see my recent article here). But what happens to a federal employee who is fired for marijuana use after failing a drug test, when he challenges the removal by stating the intake of marijuana was accidental?

The Federal Circuit recently looked at that very issue in Hansen v. DHS, No. 2017-2584 (Fed. Cir. Dec. 28, 2018). Hansen, an IT Specialist at the United States Customs and Border Protection, was subjected to a random drug test, and the results showed marijuana in his system. The agency proposed his removal for “positive test for illegal drug use— marijuana.” Regarding nexus, a portion of the proposal read “[t]he use of an illegal drug, such as marijuana, stands in direct conflict with the principles of law enforcement, the mission of the Agency, and the public’s trust.”

In his response to the proposal, Hansen said he had inadvertently consumed drug-laced brownies at a barbeque he had attended, which was hosted by someone he did not know. Hansen revealed that he wasn’t initially aware the brownies had marijuana in them, and though he felt no immediate effects from the brownies, later that evening he felt tired and suffered an upset stomach. He attributed the upset stomach to a bratwurst he had consumed at the party, and as a result he called in sick the day after the barbecue.

The Deciding Official gave Hansen’s response “significant consideration” but ultimately determined it was not convincing. In her explanation, the DO said the employee did not present “any evidence from either the person who purportedly brought the brownies, or from the host” or even “a statement from anyone else who either knew that the brownies contained marijuana or who did not know, but felt the effect of the drug.” The DO subsequently removed Hansen.

Hansen appealed his removal to the MSPB, where it was upheld. The Board said that inadvertent marijuana ingestion would be relevant to its decision, if shown, but it determined that Hansen, not the government, bore the “burden of showing such inadvertent ingestion” and he did not show any evidence to convince the Board. The decision from the Board also said Hansen relied on “thirdhand hearsay” to support his story about marijuana in the brownies, and had not supplied “statements from the hosts, other attendees who observed the presence of the brownies, or the individuals who brought the brownies,” or even any evidence confirming that he ate brownies at all.

The Board further noted that though Mr. Hansen claimed fatigue and upset stomach after consuming the brownies, he attributed those ailments to marijuana consumption only after the deciding official expressed skepticism regarding his lack of symptoms.

Hansen also argued that the removal should be reversed because the agency could not show his “intent” to use marijuana, but the Federal Circuit correctly said the charge as written did not have an intent element. The agency was not required to show intent; it was only required to show by preponderant evidence that the employee tested positive for marijuana. This highlights a fundamental principle we cover in MSPB Law Week and Developing and Defending Discipline: Words matter when drafting a disciplinary charge. Had the agency charged “intentional use of marijuana,” then Hansen might very well be back at work today.

Hansen also argued that the agency violated his Fourth Amendment right against unlawful search and seizure by conducting the drug test because the government failed to show that he occupied a testing designated position, This argument failed because the agency’s “Drug-Free Federal Workplace Program” handbook listed employees with “access to the Customs Law Enforcement Automated Systems” as testing designated, and IT Specialists fall under that designation. The Federal Circuit upheld the removal.

If you’re interested, you can read the full decision here. In the meantime, stay away from the brownies. Hopkins@FELTG.com

Why Not Taking Performance Actions is a Big Deal

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By Barbara Haga, February 13, 2019

I am shaking my head again. I was told by a supervisor in a recent class that one of his supervisors had called the servicing HR office in December about initiating an opportunity period for an employee whose appraisal cycle ends on March 31. He was told that he was too late and couldn’t do one.

I really am at a loss. This is a responsible non-bargaining unit position, the employee was relatively new in that job, although he had been a Federal employee for a few years, and they had a lot of examples of how the employee was not performing at the level necessary.

There is nothing in their appraisal system that sets any limits on when an action could be initiated. It is a mystery to me what would have been necessary to satisfy this HR practitioner that they could and should proceed.

Back to Basics

5 CFR 432.104, entitled “Addressing unacceptable performance,” states:

At any time during the performance appraisal cycle that an employee’s performance is determined to be unacceptable in one or more critical elements, the agency shall notify the employee of the critical element(s) for which performance is unacceptable and inform the employee of the performance requirement(s) or standard(s) that must be attained in order to demonstrate acceptable performance in his or her position.

The first phrase is relevant to this discussion.  The regulation says “at any time” during the cycle. It doesn’t say “at least 90 or 120 days before the end of the cycle” or “by some arbitrary date set by the HR office prior to the end of the cycle” or “the employee has to be warned at the progress review.”  It just says the employee may be notified at any point during the cycle.

I read the regulation in 430 to say that a cycle may be extended if needed in order to prepare a rating (which could include completing a PIP in my book). 5 CFR 430.208(g) states, “When a rating of record cannot be prepared at the time specified, the appraisal period shall be extended.  Once the conditions necessary to complete a rating of record have been met, a rating of record shall be prepared as soon as practicable.”  My take is that a PIP could be initiated on the last day of the cycle.  To me that’s better than giving the employee (and I chose that verb for a reason) a rating they didn’t earn.  It’s a gift that can come back to bite later.

The View from Outside HR and Legal

When HR practitioners advise, sometimes that advice can come back to roost in the future. If you advise managers not to take action or that they can’t take action, sometimes they learn to stop calling you. They may reach the conclusion that the HR or Legal staff is not able to support them (or fill in unwilling, untrained, unmotivated, etc.)

Recent history would seem to tell us that this is the perception across government.  Witness the OMB Directive M-17-22 issued on 04-12-2017 entitled “Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce.”  While many were very excited about the second part of the title, I think there wasn’t much attention paid to the part about reform.  One portion of the directive had to do with performance. Section III, Para D iii directed agencies to “Develop a plan to improve the agency’s ability to maximize employee performance.” Agency responses were due at OMB by June 30, 2017. You can check and see what your agency did with it. The list of required actions included:

  • Review policy, procedures, and guidance on how to address poor performance and conduct.
  • Remove any unnecessary barriers to addressing performance, eliminating steps not required by statute or regulation.
  • Set a date by which all supervisors will be provided a copy of rules and guidance regarding PIPs, including timing of PIPs and use of Chapter 75 procedures.
  • Ensure all managers and HR staff are appropriately trained on managing employee performance and conduct.
  • Establish real-time manager support to assist them in taking needed actions.

If that isn’t a clear signal that the Administration perceives that HR practitioners are not doing what needs to be done, we could turn to Executive Order 13839, which echoed some of the same themes. Even though the two other EOs issued last May were largely enjoined by the DC Circuit decision from last August, very little in 13839 was found invalid.  What did that order direct agencies to do regarding performance actions?  Here’s part of the list:

  • Minimize burden on supervisors.
  • Eliminate pre-demonstration period requirements.
  • Eliminate any requirement to use 432 procedures and use 752 when appropriate.

I read these two documents to say that HR practitioners need to do a better job helping managers hold their employees accountable – whether it is drafting notices in a timely manner, not agreeing to extra steps with unions, or using the right tool for the problem.

If that weren’t enough, the hits just keep coming.  On July 16, 2018 a coalition of the Senior Executives Association, Federal Managers Association, and other manager associations provided input to House Oversight and Government Reform Government Operations Subcommittee on what they thought needed to be done to fix the civil service system.  They had numerous recommendations, including implementing pay banding and merit pay, and also to:

  • Eliminate the statutory requirement that creates Performance Improvement Plans (PIPs), and the really scary one …
  • Provide funding for an online playbook with information on how to handle adverse actions, performance problems, improving employee morale, and other areas supervisors may need guidance.

Why are these manager groups asking for funding for an online tool to help them deal with their employee relations issues?  Could it be that they don’t think they are getting good service from the human beings who presently are supposed to be providing these things?  Could it be that they are tired of being told you can’t do this or that?  Could it be that it takes too long to get the actions prepared?

The Current Case

So, what about the manager who wanted to take action but was told he couldn’t?  The HR office may have thought they dodged an action, but this case is not going away.  As it happens, the manager who asked about initiating the improvement period departed.  A new supervisor is now in place dealing with this employee. I am convinced that this supervisor will persist in getting this person to perform or will take action.

However, the new manager is starting out behind the eight ball.  Because the HR office advised that an action could not be initiated in December, that departing supervisor had to complete a close out rating.  And, because according to HR nothing could be done to take this person to task for the poor performance, that rating was a Fully Successful (their system doesn’t have a Level 2).  Their system makes that close out rating the rating of record when there are not 90 days remaining in the cycle.  So, the EPF is going to include an unearned Fully Successful rating for this year.  The new supervisor will have to confront the inevitable questions if there is an action down the road about why this person was rated FS by the prior supervisor and why this employee’s performance is not good enough anymore.

The bad advice from last fall is going to add extra complication for the manager and HR to resolve this situation down the road if there is a 432 action.  This is sad – and completely unnecessary.

Affirmative Defenses 3: Too Little, Too Late

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By Meghan Droste, February 13, 2019

Although the movie theater closest to where I live features reserved seating, small theaters, and upscale snacks, I have to admit that I don’t see movies in the theaters all that often. So many of the big movies that come out every year are just the second, third or even seventh in a franchise.  Call me a snob, but I would appreciate some original ideas from time to time. I try to apply a similar standard for these articles, focusing on different topics, or at least a new spin on a topic, each time. As you can probably guess from the title of this month’s EEOC case update, I’m breaking my own rule.  A pair of decisions the Commission issued last fall involving the issue of affirmative defenses — a topic I covered in articles on the Jenna P. case last April  and November – were just too interesting to overlook.

In Sallie M. v. U.S. Postal Service, the complainant alleged that her supervisor subjected her to sexual harassment on a daily basis. See EEOC App. No. 0120172430 (Oct. 16, 2018). The harassment ultimately culminated with unwanted touching while the complainant was out on her postal delivery route. When the complainant reported the harassment, another supervisor told her that the harasser could be dangerous but apparently did not do anything else. After the complainant’s union steward got involved, the agency placed the harasser in non-duty status and initiated an investigation.  When the harasser then threatened to rape and kill her, the complainant asked the agency to move her to a different location for her safety.  She expressed her willingness to go to any location other than the post office near the harasser’s home. The agency then transferred her to that location in direct conflict with her request.

Although the agency placed the harasser in a non-duty status, investigated the allegations, and ultimately proposed the removal of the harasser, the Commission held that the agency could not successfully assert any affirmative defenses for several reasons.  First, the agency failed to take any action when the complainant initially reported the harassment and the management officials denied knowing about the report in their EEO affidavits. The Commission found these denials lacked credibility, in large part because the management officials’ responses to the EEO investigator were short and contained no details. Second, although the agency concluded its investigation within weeks of the union steward’s report of the harassment, the agency waited another two weeks to issue a report and then another month a half to propose the harasser’s removal. Finally, the Commission found that the agency failed to take proper action to prevent further harassment when it moved the complainant to a location closer to the harasser who had threatened her with physical harm.  As a result, the Commission found the agency liable for the sexual harassment as well as for retaliation.

The Commission issued its decision in Isidro A. v. U.S. Postal Service on the same day as the Sallie M. case.  See EEOC App. No. 0120182263 (Oct. 16, 2018).  In Isidro A., a manager used the n-word and the phrase “you people” during a staff meeting while referring to a group of African-American employees. The complainant and a union steward reported the comments within days of the meeting, but the agency did not initiate its investigation for another three weeks. The investigator issued a report less than two weeks later, finding that the manager admitted to making the statements. The agency waited another three months before issuing a proposed letter of warning in lieu of a 14-day suspension. Ultimately, the agency concluded that although the complainant had been harassed by the manager’s comments, it was not liable because it took prompt and effective corrective action. The Commission rejected the agency’s findings regarding the affirmative defenses. It found that the agency waited too long to initiate the investigation and too long to take any action after the investigator issued a report. The Commission also held that the proposed letter of warning was “a woefully inadequate response” to the harassment.  As a result, the Commission concluded that the agency was liable for the harassment.

The main takeaway from these cases is that any corrective action should be prompt — remember waiting for a week or two to start an investigation is not prompt — and effective in correcting what happened and preventing any further harassment. These are key points not just to avoid liability, but also to ensure a productive and safe work environment. Droste@FELTG.com

The Good News

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By Ann Boehm, February 13, 2019

I know, I know.  How can there possibly be any good news after the 35-day government shutdown? But please hear me out.

Those who were required to work are exhausted, exasperated, and bummed that they did not have an opportunity to clean out closets and basements. Those who did not work are frustrated and feeling undervalued. Let’s not forget the overdue bills and debts incurred when hundreds of thousands weren’t paid for 35 days.  Everybody is angry – and that’s understandable.  You should be.

During the 2013 shutdown, I was “essential,” or whatever the buzzword of the day is for “having to work during a shutdown.” I wasn’t sure I would be essential, so I started a basement paneling painting project, expecting to have lots of time to see that to completion. But I was essential, so my “furlough project” became my evenings and weekends project.

There’s always some relief in being essential, because you know you will get paid. But then Congress also pays the non-essential employees for the time they did not have to go to work. I will fully admit that I was bitter about having to work while others did not. And we all got paid the same. And my basement still had to be sanded, primed, and painted.

Why am I going over all of this?

To move forward as an effective body of federal government employees, everyone needs to acknowledge the frustrations felt by everyone else (except maybe Congress and the President, who haven’t seemed particularly bothered by it) during and after this shutdown. Perhaps those who did get a substantial amount of paid time off can pick up some slack as they return and help those who had to work without pay. Maybe agencies can come up with creative ways of rewarding those who had to work. Maybe agencies can also figure out ways to show those who were non-essential that they are highly valued.  Most importantly, everyone needs to be mindful of everyone else’s needs. Federal employees need to work together to get this government back in shape.

Okay, Ann, you may be saying. Still waiting for the good news. Well here goes.

The American public is starting to realize that government employees are skilled, hard-working, and dedicated, and that they’re critical to the nation’s effectiveness. That is really good news.

As you know from our newsletters, federal employees have been a target for Congress and the President, and even the public. But you know the old adage: You don’t know what you’ve got until it’s gone. Now Congress is actually contemplating a 2.6 percent pay raise for 2019! Let’s hope the good will and positive feelings toward Federal employees continue.   We need that for federal workers and for the good of the country.

What else?

We at FELTG are here to help. Our instructors are available to assist the overworked among you. Along with the training we provide, we can serve as advisors, consultants, and even litigating attorneys. Need help reviewing discipline proposal and decision letters?  We can do that.  Need help reviewing investigative reports? We can do that too. Heck, we can even provide oversight and other assistance on performance-based actions and personnel litigation.  Human resources professionals, counsel, and managers out there: If you need assistance to get moving again, we can help.

Also, join me for a 60-minute webinar Boosting Employee Morale: 10 Dos and Don’ts for Federal Managers. I’ll share specific actions you can take to lead employees through these difficult times.

Any more good news?  Yes. This article will be a regular feature of our newsletter. We want you to feel good about yourself and your jobs. We are going to make an effort to highlight what is going well in government—“The Good News.”  Feel free to share any stories with us by emailing me at Boehm@FELTG.com.

We know we often focus on the crazy judges, problem employees, missing MSBP members, and Congressional attacks, among other things, but we know there is good out there.  You need to know those things. But with this column, you can stay tuned for more good news! Boehm@FELTG.com

Tips from the Other Side: February 2019

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By Meghan Droste, February 13, 2019

The EEO process, which should be your valentine, does not end when an agency issues a Report of Investigation. It often continues in front of an EEOC administrative judge, which means both sides spend a fair amount of time requesting, producing, and reviewing information in discovery. For the next few Tips from the Other Side, I am going to share some tips that should make the discovery process more efficient and less painful for you.

The first discovery tip is to avoid boilerplate objections.  It is not enough to simply say that a request is vague, or overly broad, or unduly burdensome.  If any of these things are true about a request from the other side, be sure to explain exactly what the issue is — what part of the request is vague, in what way (scope, time period, etc.) is the request overly broad, or why would responding to the request actually be burdensome? You should also keep in mind that a boilerplate objection that the requests are not likely to lead to the discovery of admissible evidence is not going to get you very far.  See Petty v. Dep’t of Defense, EEOC App. No. 01A24206 (July 11, 2003) (finding that objections about the likelihood of leading to admissible evidence are largely unhelpful and improper because “questions of evidentiary admissibility are rarely implicated in federal sector hearings”).

Boilerplate objections are objectionable (yes, pun intended) for two main reasons.  The first is that they are a waste of time.  They do not assist the parties in resolving any discovery disputes and instead lead to unnecessary correspondence and motions that could be avoided with more meaningful objections.  The second reason is that they may very well backfire against the party raising them.  Some courts have held that not only will they overrule boilerplate objections, but they will also find that the party making them has waived all objections and therefore must respond fully to the original request.  See, e.g., Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 247 (M.D.N.C. 2010) (“By failing to present valid objections to these discovery requests, Plaintiff ‘waived any legitimate objections [they] may have had.’”); Williams v. Sprint/United Mgmt. Co., No. 03-2200-JWL, 2005 U.S. Dist. LEXIS 16946, at *31 (D. Kan. Aug. 12, 2005) (“Defendant . . . fails to explain how the request is overly broad and any alleged overbreadth is not apparent on the face of the request.  The court, then, must overrule the objection.”).  In order to preserve your right to object, as well as your time and resources, you should be as specific as possible in your objections.  Leave the boilerplate language for the printing presses where the term may have originated. Droste@FELTG.com

Performance Requirements and PIPs, Post-Shutdown

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By Deborah Hopkins, February 13, 2019

The longest shutdown in history is over, but there is a threat of yet another shutdown coming up in just a couple of days. At FELTG, we’ve gotten a LOT of questions about the shutdown, including a number on shutdown-related employee performance issues. So I think it makes sense to address some of the questions, and answers that have arisen over the last 7 weeks or so.

Do you need to alter performance requirements after a shutdown?

Yes, No, Maybe.

Yes. Of course, you can’t hold accountable any work that was not done during the shutdown; you essentially have to ignore the work that was not done and be reasonable in rating the employee’s performance after she gets back to work. For example, let’s say to be fully successful, one of the critical elements of the employee’s performance plan requires the employee to return all customer voicemails within 24 hours. Well, if the voicemails had been piling up for 35 days while the government was shut down, it’s completely unreasonable to require the employee to return every single call within 24 hours.

No. If the employee’s performance plan is broken down into daily requirements that haven’t been impacted by the shutdown, and the employee has not come back to a huge backlog, there may not be any need to alter the performance requirements. If an employee on the custodial staff is required to clean 10 offices each day, and those 10 offices have been empty for the last 35 days, you wouldn’t need to alter the performance requirement.

Maybe. Let’s use the example of custodial staff again, and those same 10 offices the employee is required to clean every day. If those offices had been used by essential personnel during the shutdown and after 35 days of not being cleaned they are atrocious and take 10 times as long to clean to the appropriate standard, then you may have to temporarily modify the performance requirements until things are back to normal.

The best idea is to communicate with your employees and set reasonable expectations for performance during this “dig out” period. When the backlog is cleared, let the employee know it’s back to business as usual. Oh, and follow up the discussion with an email as documentation of what you discussed.

What do you do if an employee’s Performance Improvement Plan was scheduled to start during the shutdown?

Oh, what a fun one. Remember, to put an employee on a PIP, you only need to be able to articulate a reason for doing so – that the employee fell below acceptable on at least one critical element of his performance plan. Therefore, you can put an employee on a PIP post-shutdown based on his performance leading up to December 21. If you had planned to launch a PIP January 2, but couldn’t because the employee was furloughed, then you can start it any time you want, as long as you can articulate the reason for the deficient performance.

The only time you might want to re-think it is if your poor performing employee came back post-shutdown and has been a rock star for the last couple of weeks, outperforming everybody.

What do you do if an employee’s Performance Improvement Plan was scheduled to end during the shutdown?

Unless there was only a day or two remaining in the PIP, you must extend the PIP by however many days were left in the PIP when the shutdown occurred, and you must ignore the period the government was shut down in the overall assessment of performance productivity. You will also need to look closely at the PIP requirements and make adjustments as necessary, to reflect the legal requirement that you allow the employee an opportunity to demonstrate acceptable performance.

For example, let’s say the employee had 15 days left on the PIP when the agency shut down. Now, you’re picking up with the remaining 15 days on the 30-day PIP and perhaps setting new deadlines and goals for the weekly assignments you’ve laid out. (If you haven’t done this, come to MSPB Law Week to learn why it’s so important). You can’t change or alter a performance standard, but you can clarify it. If the draft grant proposal was supposed to be completed by day 25 of the PIP, you’ll let the employee know he has 10 days to finish that proposal. Be specific, be clear, to let the employee know what exactly is expected.

If the PIP was all but over, and was supposed to end December 24 (Merry Christmas!), you probably have enough evidence to show whether or not the employee was successful. The shortest PIP on record, that the MSPB held was a reasonable amount of time to demonstrate performance, was 17 days. See Bare v. DHHS, 30 MSPR 684 (1986). 

Can you cancel an employee’s already approved leave once the shutdown ends due to performance workloads that now exist because of the shutdown?

Absolutely – you can always cancel previously-approved leave if you have a legitimate, business-based reason for doing so – as OPM puts it, for “project related deadlines or the workload of the agency.” And a 35-day backlog with all the related issues is most certainly related to the agency’s mission. So if you have to do it, go ahead and do it.

At FELTG we are keeping our fingers crossed that there is NOT another shutdown this weekend. But we’ll be here, either way. Hopkins@FELTG.com

 

Collect Call for Misuse of Technology: Do You Accept the Charges?

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By Dan Gephart, February 13, 2019

In these highly partisan times, I think there is one thing we can all agree on,whether your politics lean left or point right, and that unifier is this: Geico makes the best commercials. Right?

(Disclaimer: I’m not a Geico customer. However, there may be a picture of me with a large gecko taken in a previous life).

One of my favorite Geico commercials is “Collect Call.” That’s the one where a brand new parent, hoping to save a few coins asnew parents are wont to do, makes a collect call from the hospital to a relative. He tells the operator: “Collect call. First name: Bob. Last name: Wehadababyitsaboy.” The relatives immediately reject the collect call. They don’t need to pay the phone company to know that Bob’s wife had the baby and it’s a boy.

Let’s call this action, a variation of which many of us of a certain age used to communicate to our parents in our teen-aged days, what it really is: Misuse of technology.

It’s almost as if some humans are always going to find a way to use the technology in a way for which it wasn’t created, whether it’s telephones or computers or tiny telephones that mostly serve as computers.

We all know tech misuse is a big problem in the federal workplace. And much like our collect caller, some federal employees have gotten pretty creative in their misuse of technology. Despite what the shock headlines tell you, it’s not all about porn.

Register for Barbara Haga’s upcoming webinar Tsk Tsk Tech: Computer-related Misconduct in the Federal Workplace on February 26 and you’ll hear the following non-pornographic examples, and many more.

There’s the VA housekeeper’s aide, who used his government computer to send promotional emails about the handbags and DVDs he was selling. His removal charges included inappropriate use of an agency computer. But removal was the least of his problems. He was criminally charged for trafficking in counterfeit goods. You didn’t really think that Gucci had three c’s, did you?

Then there was the EPA attorney-advisor who was removed for using his government computer to do his outside legal and real estate work. His excuse that he was mostly replying to emails? That didn’t really stick.

My favorites usually involve social media, and few beat the nurse who posted the following comments on her Facebook page:

• Just realized I never see my head nurse and Satan in the same place. Hmmmmm?????

• Off to work like a dog, for pennies, in unsafe conditions, being exposed to diseases and body fluids … no, not a third world country … I’M A VA NURSE.

The nurse, who also referred to her coworkers as d—heads, liars, and b—— in Facebook posts, was suspended for 14 days, although an arbitrator later mitigated it to 5 days. [Hopkins note: we only used the dashes so your firewall wouldn’t filter our newsletter as junk mail. If you need to know what grown-up words the employee used, email us. J]

The range of misuse is wide, and how you choose to handle it will depend on the type of misuse. Was the employee’s misconduct criminal? Did it violate the Hatch Act? Did it disrupt the workplace? Did it interfere with agency work? Did it involve harassment? What agency policies were violated?

The key to finding the right discipline is to not be overwhelmed, and to approach your actions in a strategic, knowledgeable, and efficient way – the FELTG-Way© as we like to say here. And I can’t think of a better start than Barbara’s webinar later this month.

Three Best Practices for a Douglas Factors Analysis

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By William Wiley, February 6, 2019

Most members of FELTG Nation know that the Douglas Factors are the 12 employee-specific situational factors that agencies use to determine and defend a penalty selection in a misconduct removal appeal. Fail to evaluate the 12 factors the way that MSPB thinks they should be evaluated, and the Board will lower (mitigate) your removal to something less. When that happens, the employee gets her job back and you get sent to the dog house for not foreseeing how MSPB will consider the penalty.

When I was Chief Counsel to the MSPB Chairman, I reviewed thousands and thousands of Douglas Factor assessments. Without a scintilla of hesitation or doubt, I can assure you that the following three graduate-level principles will help you do a better job of defending your penalty section in a removal appeal:

1. Judges think in linear terms. Few people outside of MSPB know this, but when an individual is hired to be a Board administrative judge, that lawyer has to undergo a surgical procedure. In that procedure, 12 groves are made in the acolyte’s brain, one for each Douglas Factor. In assessing an appeal or listening to testimony at hearing, the judge likes to fill each grove with information about just that Douglas Factor, in the order that the factors are listed in the original Douglas decision. So, what does this mean for you as a practitioner?

  • Don’t go discussing the penalty factors in some sort of smashed-together paragraph.No matter how elegant and insightful your narrative discussion might be, you’re going to cause the judge to have to dissect what you’ve said and try to sort it all out into those little groves in his brain. You do not want the judge to have to do that. You do not want a judge to work any harder than necessary to understand the theory of your case and your evidence to support that theory.
  • Address all 12 factors, in order. Even if a factor carries no weight because there’s nothing there, note that the proposing official considered it and found nothing. A simple “Not Applicable” will do the trick. The mistake you are avoiding by doing this is a claim by the employee that you skipped a factor and didn’t even think about it, when the truth is that you thought about it and found it to be irrelevant.
  • Carefully segregate your factual description and limit your discussion of a factor to just that factor. For example, when discussing Factor One, Seriousness, don’t talk about how the misconduct is serious because the employee is a supervisor. You’ll be able to discuss the employee’s supervisory status in Factor Two, Job Level. You get negative points for repeating yourself in a Douglas analysis.

2. Some factors have subcomponents. Factors One, Two, and Four have evolved separate and somewhat distinct subcomponents over the years that the Board has been analyzing penalties. For example, Factor Four, Past Work Record, includes the subcomponents of a) Length of Service and b) Performance Rating. In fact, the Length of Service subcomponent has three subcomponents to it. Be sure to address all subcomponents or the Board will find fault in your analysis and perhaps substitute its penalty determination for yours. You don’t want MSPB doing that. Either come to one of our always-elucidating seminars (next offered in Washington, DC March 11-15) and we’ll teach you all the subcomponents or figure them out for yourself.

3. A Douglas Factor worksheet should be attached to the proposal notice. I’m not sure why this has been such a controversial matter for some agencies. On occasion, I’ve been confronted by more than one practitioner who argued passionately that the proposal notice should NOT contain a Douglas Factor analysis. I never really understood that argument because the Douglas decision itself says:

Moreover, aggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors before the agency’s deciding official, and the decision notice should explain what weight was given to those factors in reaching the agency’s final decision. Douglas v. VA, 5 MSPR 280 (1981)
I guess you could split hairs and say that only aggravating, not mitigating, Douglas Factors have to be in the proposal notice. Well, do you REALLY want to bet your case on defending the evaluation of whether a specific factor is aggravating or mitigating? Length of Service can be either aggravating or mitigating, depending on how long the employee has been a civil servant. We have to consider both aggravating and mitigating factors in the final decision. Why would we not put them all in the proposal so that the employee knows what we’re doing and why? Maybe we’ve forgotten something (e.g., military service) that is required to be considered. She should have the opportunity to know this stuff so she can respond and defend herself completely.

In addition, as we’ve taught here at FELTG for nearly 20 years, the Board holds agencies to different burdens of proof when a fact is asserted in the penalty analysis as compared to when a fact is asserted in the charge section of a proposal notice. By analyzing the penalty in a separate document, the Douglas Factor Worksheet, we make it exceedingly clear to the judge exactly what is going where, and thereby which of the two proof burdens he is supposed to use when evaluating our case.

In a recent case I was working with an agency legal counsel, during the prehearing conference the appellant began to argue to the judge that the selection of removal as the penalty was unfair. The judge cut her off right away by saying, “Madam, it is not my job to assess the fairness of the penalty. It is my job to assess whether your supervisors properly assessed all the factors relevant to penalty selection.” That judge understands how Douglas works, and so should you. Wiley@FELTG.com

And Now a Word With … Jeffrey Vargas on Workplace Generational Issues

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By Dan Gephart, January 29, 2019

Holding federal employees accountable is a big part of what we teach here at FELTG. Accountability is our goal. It’s in our mission statement. So I read with heightened interest recent stories about Millennials entering the management ranks. I wondered, rather hopefully, if Millennials were better than their colleagues from other generations at the important managerial task of accountability.

I reached out to Jeffrey Vargas, the president/CEO of Generationology LLC. If anybody has the pulse on the intergenerational workplace, it’s Jeff. And he knows the federal workplace, too. He was a recruiter, diversity manager and chief learning officer for several agencies before starting his own firm.

“Millennials are amazing, and so are folks from other generations,” Jeff said. “Millennials don’t have a special connection with workplace accountability, in fact, for many who have less than five years of government experience, they are still learning the tools and mechanisms that are available to Fed managers to ensure proper employee performance and conduct. What Millennials do have is a willingness and a greater comfort to try new things and push for more transparent individual and organizational accountability which in the end, can help speed up important fundamental organizational change.”

For this initial And Now a Word With column, I talked with Jeff about how multiple generations are re-shaping the federal workplace and how federal supervisors should be managing it.

DG: How has having multiple generations impacted the federal workplace?

JV: The concept of “how you get work done” has been redefined. Gen X was the first to push for more “work/life” balance, causing agencies to look at and implement initiatives like flextime. Millennials joined the push and have done a credible job of advancing the work/life conversation, pushing for more telework options. Boomers, as the ultimate group of collaborators, no longer universally believe that an employee is only productive at work if I “can see you at your desk.” Boomers are now, on a more regular basis, seeing the benefits of using technological collaborative tools (i.e. – cloud computing, telepresence, real-time document collaboration, etc) that is helping to make work flows and work products more complete.

DG: What can federal supervisors do immediately to improve communication between different generations?

JV: Talk, discuss, listen … do. Intergenerational collaboration makes the workplace awesome, and intergenerational conflict can bring down morale and productivity at lightning speed. Intergenerational issues need a place to breathe in the workplace, they shouldn’t be ignored. They don’t improve through avoidance. Supervisors should devote time at all-hands meetings or bi-weekly meetings to talk about their focus on improving the workplace through the application of intergenerational knowledge. Lay out a plan, listen to employee input, implement pilots/programs and embrace change. Intergenerational awareness is an important piece, but not the only piece to effective talent management.

That said, it’s important for employees to know that not every idea can be implemented, will make sense in the long term, or fit within the government legal/ethical box. Hence, supervisors need to communicate both the things that they will and won’t do, and supervisors have to take greater accountability for their own decisions and not “blame it on management.” Open, authentic conversations and discussions will help to reduce intergenerational conflict and expand intergenerational collaboration.

DG: What’s the biggest misconception about Millennials in the workplace?

JV: A lot of supervisors see their Millennial employees as “in-house tech staff.” Managers assume Millennials can navigate new systems and programs without any training. [The] truth is, Millennials are digital natives and they do have a comfort with new technology but that doesn’t mean that they are fully prepared to deal with any computer, cyber or system issue that pops up in their office, or across the enterprise.

DG: What are workplace trends you expect to see in the near future based on generational changes?

JV: On the good side, we will continue to see an expansion of work/life programs and an increase in the utilization of collaboration tools and cloud computing. We will see greater focus on the collection and analysis of big data and a stronger reliance on data to influence our decisions. The negative: We will probably see an increase in intergenerational conflict and a flatline/decrease in employee engagement, at least until organizations make a firm commitment to be identifying, addressing and deploying a more intergenerational approach to work.

The State of Civil Service: January 2019

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By Deborah Hopkins, January 23, 2019

We’re just over three weeks into the new year and it’s safe to say, the state of the civil service hasn’t seen darker days in quite some time – if ever. There has been a lot happening (and a lot NOT happening, unfortunately), and with the ever-shortened news cycles, there’s a chance that  blink-and-you-might-miss-it information may have passed you by.

Let’s take a look at where we are, and where we might be going, as it relates to our loyal FELTG readers.

The Longest Shutdown Ever

Supposedly only 25 percent of the federal government is shut down, but it sure feels like a lot more, doesn’t it? If you’re furloughed and about to miss your second paycheck, or if you’ve been working for a month without getting paid, you feel the pain more each day. Contractors are getting crushed from the lack of business, as are restaurants and other business owners who rely on federal employees to keep afloat. And those of you whose agencies have been operational have also had to deal with some headaches, including rumors of travel restrictions that end up being just rumors, cancelled conferences and events, and plummeting morale among federal employees.

It’s ugly and I hope it ends soon. I know more than a few federal employees who are done waiting on this to be resolved and have decided to seek employment in the private sector. That’s a shame because these are wonderful, brilliant, amazing people whose departures will be a huge loss to the government.

Congress

Despite the lack of meaningful movement on the aforementioned shutdown, the House recently passed a bill (originally introduced in 2017) that addresses discrimination and sexual harassment in federal agencies. The Federal Antidiscrimination Act amends the NO FEAR Act and clarifies that the role of agency EEO offices shall operate independently of HR and OGC. OK that’s fine, no big deal, right?

Just wait. Further on down, you’ll see that the law would require the EEOC to inform the U.S. Office of Special Counsel (OSC) of all findings of discrimination or retaliation in its appeals. OSC will then review the case for the purposes of seeking disciplinary action against the employee who engaged in discrimination or reprisal. From my read, it looks like agencies will not be allowed to discipline that employee once OSC gets involved, effectively leaving the decision on how to discipline up to OSC and not the agency.

This bill moves on to the Senate next, so we’ll see what those 100 folks on the hill have to say about it all.

MSPB

January 7 marked two full years since MSPB had a quorum. That’s two years of Petitions for Review stacking up, day after day, added to the pile that can’t be issued as Opinions & Orders because the sole member, Acting Chairman Mark Robbins, needs at least one other member to make a quorum and issue decisions. Our estimates are somewhere between 1,600 and 1,700 PFRs waiting to be addressed.

You might remember, late last November the Senate Committee had a scheduled vote on the nominees the President had put forward. Senator Rand Paul refused to cast the vote that would have advanced them out of the committee and to the full Senate for a vote.

Well, if the news couldn’t be any stranger, last week the President re-nominated the very same three people to be Board members: Dennis Dean Kirk, Andrew Maunz, and Julia Akins Clark. At FELTG, we were scratching our heads and wondering what the heck was going on because Senator Paul is still on the committee. While the committee is made up of 8 Republicans and 7 Democrats, a “no” vote by Senator Paul would result in a 7-7 tie and the nominees would not be advanced. If he decides to abstain, then the Republicans would have a one-vote advantage and the nominees would be advanced to the full Senate for a vote, where the Republicans have a 53-47 advantage. Or, maybe a Democrat or two on the committee plans to vote “yea” as was almost always the case in these types of bi-partisan boards and commissions until very recently.

Who knows? We can’t predict the future but we WILL keep you posted.

EEOC

Amid all the shutdown talk, did you happen to see that EEOC no longer has a quorum of Commissioners? That’s right, out of a five-member commission only two remain because Commissioner Chai Feldblum was not re-confirmed. (Look elsewhere in this newsletter for details about that.) Last week the President re-nominated one person, Janet Dhillon, to serve as Commissioner but as of this writing, no confirmation hearing was scheduled.

The good(ish) news for you is that the lack of quorum at EEOC doesn’t have much impact at all on federal employees. The Office of Federal Operations, which is responsible for issuing decisions on EEOC Appeals, is still functional and Administrative Judges are still issuing decisions. Well, except not really … they’re all furloughed for now. So, if the government re-opens, EEOC will be mostly business as usual, besides, of course, the calendar nightmare of a month’s worth of missed hearings, pre-hearing conferences, etc.

FLRA

Chairman Colleen Duffy Kiko, who heads up the Federal Labor Relations Authority, recently decertified the employee union at FLRA. She reasoned that by having a union at FLRA, the agency was actually violating the labor relations statute it was created to enforce; because employees at FLRA work with federal labor relations law they should be excluded from being in a union, per the language of the statute. How about that? Our friends over at FedSmith have written about this in detail, if you’re interested in the nitty gritty.

OPM

The federal government’s central HR office, while itself partially impacted by the furlough, has offered some guidance on this (ridiculous) shutdown, including topics such as what happens to leave accrual for furloughed employees (spoiler alert: it stops) and how healthcare and retirement benefits are impacted.

Late in December, you may have seen that OPM posted template letters for federal employees impacted by the shutdown – letters that requested landlords allow tenants to barter services such as painting and landscaping in exchange for reduced rent. As you can imagine, it did not go over well, and OPM quickly withdrew the letters, stating that they were posted by mistake.

OSC

The U.S. Office of Special Counsel (not to be confused with Special Counsel Robert Mueller’s team) is closed during the shutdown. Its website has still been accepting online complaints but a disclaimer states that the complaints likely won’t be reviewed until after OSC reopens. So, whistleblowers can file but they won’t see an investigation until this all ends.

Unions

The federal unions, including NTEU, NATCA, and AFGE, are keeping busy with a lot to challenge, most specifically the fact that nearly half a million federal employees have been required to work without pay for almost a month. I saw an argument in a district court filing that said the requirement to work without pay was akin to involuntary servitude, which is a violation of the Thirteenth Amendment’s prohibition against slavery. NTEU is also challenging the recalls to work that were more recently issued to more than 40,000 IRS employees who were not considered essential in December but are being required to work without pay now.

So, there you have it. People usually start a new year with excitement and hope, but this one is sure giving us all some challenges.

At FELTG, we are doing our best to stay positive and stay available to answer your questions, provide you with content, and even do some training while we wait for the world to right itself again.

Take care, my friends. Hopkins@FELTG.com