Could You Fire Matt Lauer?

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By William Wiley, December 13, 2017

Pop Quiz: What do these three individuals have in common?

  • Charlie Rose
  • Matt Lauer
  • Garrison Keillor

Answer:  No doubt, a list of very descriptive words came to mind when you were trying to come up with an answer. Well, since this is an employment-law-like newsletter, you might have guessed that is the sort of answer we’re looking for. When you come at it from the human resources direction, the answer relevant to all you readers is this:

They each were fired within about 24 hours of being charged.

When this topic came up in one of our famous FELTG seminars a week or so ago, one of the attendees opined that it would be great if we could move that quickly in the federal government when we come across a bad employee.

Well, we can. More or less.

Using the Lauer situation as an example, here’s what’s been reported:

  1. One of Lauer’s coworkers, accompanied by her super-duper attorney, met with representatives of the company’s human resources office. In that meeting, the former co-worker described in graphic detail unwelcome sexual contact initiated by Lauer.
  2. Human resources confronted Lauer with the charge, which he did not deny (or may have even admitted; I can’t tell from the news reports).
  3. Lauer was then fired.

There’s no reason that a good human resources office in a federal agency could not essentially accomplish this same result if there were a sexual harasser in the workplace, with a bit of tweaking to comply with the civil service law.

  1. You would have a sworn statement from the victim. That’s a preponderance of the evidence. No need for a big investigation or a bunch of witness interviews. It is more likely than not that the event occurred if she said it did, she’s credible, and there’s no evidence it did not occur.
  2. Because it’s the federal government, we would have to draft a proposal to remove. That should take maybe 15 minutes: “By this memo, I propose that you be removed based on the following charge. On November 30, 2017, you coerced Vickie Victim into having unwelcome sex with you.” Attach to the memo the sworn statement above.
  3. Unless you are fortunate enough to work at DVA, you’ll need to complete a Douglas Factor worksheet. If you can’t pump up Douglas Factor 1, the nature and seriousness of an offense like this to justify a removal, you need to come to one of our classes. Commenting on all 12 Douglas Factors should not take more than 20 minutes.
  4. In the proposal notice, above, include a paragraph that places the employee on Notice Leave. That way, you can get the employee out of the work place the same day that you draft the proposed removal which should be the same day you obtain the sworn statement.

In the private sector, where the darned Constitution doesn’t apply, they guy stops getting paid that day. However, in the fed, we’ll need to give the dude a seven-day chance to defend himself orally and in writing, and can’t issue a final decision until Day Eight. At least he’s out of the workplace all this time. In most cases, we’ll have to pay him for another 22 days because the law says so, but he’s already fired. In some cases, you’ll be able to get him off the payroll on Day Eight if you conclude the misconduct amounts to a criminal assault or some other crime that could involve jail time.

Can your human resources office do this? If not, then you should fix that. Victims in cases like these, as well as the citizens of our great country, deserve swift justice. Does your legal office see a problem with moving this quickly? Then the folks over there need to read a few MSPB cases to find out how expedient this can be.

We take a lot of flak in the fed for not acting quickly to hold employees accountable. The recent incidents reported in the press give us a reason to rethink how we initiate removal actions in egregious circumstances. Here at FELTG, we recommend that you get your best minds together and develop a predetermined procedure with specific assignments and draft templates to deal with issues like these before they occur. Our coworkers who are the victims of sexual misconduct deserve no less.

As my grandmother used to say, “It doesn’t do any good to order the fire extinguisher after the fire has started.” And as I learned in the Boy Scouts many years ago, “Be prepared.” Be ready for things like this to happen, because they are going to happen again, Mister, they are going to happen again. Wiley@FELTG.com

It’s Called Sexual MISCONDUCT for a Reason

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By Deborah Hopkins, December 13, 2017

You probably saw last week that Time Magazine’s 2017 Person of the Year is not a person at all, but rather is a group of people: “The Silence Breakers,” the women who came forward under #MeToo as victims of sexual harassment and assault.

This #MeToo movement continues to reveal more details of sexual misconduct in the workplace, and more horrifying details of sexual misconduct – from the highest levels – are coming out. It may seem like “guilty until proven innocent” is the trend in Hollywood (think Matt Lauer; Kevin Spacey; Harvey Weinstein), but keep in mind that there’s a lot we don’t know about why those ramifications hit so quickly. There could have been admissions, confessions, or agreements to resign.

What we do know is that because of these front-page stories, there is now a heightened awareness and sensitivity to sexual harassment and related inappropriate conduct in the federal government. Sexual misconduct among federal employees is not anything new, but because it’s a topic on everyone’s minds, it’s worth a deeper look today.

First of all, sexual harassment is a term of art and while it’s easy to allege, it’s actually not that easy to prove. There are elements to a sexual harassment claim, and the complaining employee must prove them all in order to prevail. So, there is a LOT of inappropriate conduct that does not rise to the level of Title VII sexual harassment but is still inappropriate in the workplace.

What does this mean for you, at your agency? It means you should not wait to discipline an employee who engages in inappropriate sexual conduct until a complaint of sexual harassment is filed or proven. The EEO complaint process takes so long, you could have a predator roaming the halls of your agency for years before there’s ever a finding. So do not delay.

A lesson we learned from the Postal Service 30 years ago is that an agency can remove an employee for inappropriate sexual conduct, even if the conduct does not rise to the level of Title VII harassment. It bolsters the agency’s case for removal if the employee’s conduct affects other agency employees, and if the agency has a legitimate concern about incurring potential Title VII liability if it fails to take appropriate action to correct the employee’s behavior. See Carosella v. USPS, 816 F.2d 638 (Fed. Cir. 1987). Part of an agency’s obligation in these cases is to promptly investigate and STOP harassment from occurring, so acting quickly is the best way to protect employees from harm – and to protect your agency from liability.

So, what kinds of cases warrant removal as an appropriate penalty? Let’s look at a few.

Supervisor Misconduct

Supervisors are held to a higher standard than co-workers, so if the perpetrator is a supervisor we know that removal can be warranted, especially when there are multiple charges of inappropriate sexual behavior toward subordinates. Last year the MSPB affirmed a supervisor’s removal for Unacceptable Conduct where the supervisor made inappropriate comments with sexual undertones to several subordinates, including telling an employee that he was willing to help her cheat on her husband, and telling a different employee that she could take the day off if she was willing to act “a little unprofessional.“ Oliveros-Ballon v. USPS, SF-0752-15-0615-I-1 (April 15, 2016)(NP).

In another recent case, a supervisor’s removal was affirmed after she made comments of a sex-based nature and touched an employee on the buttocks on multiple occasions. That’s right, female supervisors engage in this type of behavior as well, and are disciplined accordingly. Reid v. Air Force, CH-0752-14-0849-I-1 (April 5, 2016) (NP).

Over at the VA, a supervisor’s removal was affirmed after he was charged with 20 counts of inappropriate and intimidating sexual comments, sexual conduct, and changes to working conditions, of his female employees. Alberto v. VA, 98 MSPR 50 (2004).

There are hundreds, if not thousands, of cases that follow this same line of outcome, but hopefully by now you get the idea. Sexual misconduct – regardless of what you decide to call the charge – is nothing new and agencies have been successfully removing supervisors for decades over inappropriate sexual language and conduct in the workplace.

Coworker Misconduct

In the case of a non-supervisor, though, removal is often still an appropriate penalty. Earlier this year, the Federal Circuit upheld a removal for Unacceptable Conduct where the appellant made 10 vulgar sexual comments to female customers and coworkers. Canarios v. USPS, No. 2017-1935 (Fed. Cir. 2017) (NP). In another recent case, an MSPB AJ upheld a Conduct Unbecoming removal when an appellant made sexual comments and gestures at three coworkers and did not stop after they objected to his conduct. Adkins v. DOD, SF-0752-16-0294-I-1 (December 12, 2016) (NP).

A Treasury employee’s removal was upheld by the MSPB because he continued to talk to a coworker in sexually offensive and derogatory terms, after being explicitly told by management not to do so. Lentine v. Treasury, 94 MSPR 676 (2003). [Editor’s Note:  This is critical and sometimes, this is hard. Before we can discipline, the employee has to be on notice of the prohibited misconduct. Some conduct obviously violates accepted norms of behavior and can be disciplined even if we did not tell the employee not to do it; e.g., non-consensual sexual touching. On the other hand, some conduct is not so obviously inappropriate; e.g., touching someone’s shoulder. The manner and context of conduct often determines whether the employee should have known not to do it; e.g., was the shoulder touch an “Atta boy/girl” congratulation or was it a “Hey, baby. You got some nice sexy shoulders there.” The good news is that a supervisor can establish rules that clarify any gray areas; e.g., “No touching. Anywhere. Any time.”]

This is serious stuff that requires appropriate action.

If you’re dealing with a potential sexual misconduct charge, you’ll want to pay special attention to these mitigating or aggravating factors in penalty selection for sexual harassment cases:

  1. Physical contact
  2. Frequency or severity of the conduct,
  3. Supervisory status,
  4. Clarity with which employee is on notice of rules prohibiting sexual harassment and improper conduct, and
  5. The employee’s potential for rehabilitation.

See, e.g., Reid, supra.

Is there a correct way to handle in these cases? Yes. The answer is to take prompt, effective corrective action so that these behaviors do not continue. Look to the cases for guidance. And hey, while it seemed for a while that Congress was above it all, we’re finally starting to see that in sexual misconduct is a serious offense, and it deserves consequences, no matter who you are. Hopkins@FELTG.com

EEOC Finds Agency Should Have Allowed Employee with Terminal Cancer to Telework

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By Deryn Sumner, December 13, 2017

Last month, the Commission issued a decision modifying a Final Agency Decision which had found no discrimination, and found the National Science Foundation failed to accommodate an employee with stage 4 terminal cancer.  This case is notable for a few reasons.  One, it is another in a string of cases where the Commission has instructed agencies that it must allow telework as a reasonable accommodation.  It is also notable in that it illustrates how long these cases take to process, as this one was filed in 2011, and the Complainant died several years prior to receiving the decision.  Finally, this case is notable to me personally as I had the pleasure of knowing and representing the Complainant before her death.  Although this case took many years to litigate and my client did not live to see her claims prevail, I am proud to finally obtain justice on her behalf.

The case citation is Doria R. v. National Science Foundation, EEOC Appeal No. 0120152916 (November 9, 2017). First, let’s address the procedural delays. The Complainant filed her formal complaint on November 9, 2011.  She received an ROI and requested a hearing before an Administrative Judge.  That administrative judge granted summary judgment in the agency’s favor on February 9, 2012.  The Office of Federal Operations reversed the grant of summary judgment and remanded the case for hearing more than 21 months later in Doria R. v. National Science Foundation, EEOC Appeal No. 0120121886 (December 11, 2013).  It then took until October 2014, another 10 months, for the case to actually be heard by an EEOC Administrative Judge.  It took six years to the day from when the Complainant filed her formal complaint to when the EEOC issued a decision finding discrimination. And the decision is not even final yet, as remedies including compensatory damages and attorney fees have not yet been decided. Although I counsel my clients that the federal sector EEO complaints process takes years, this puts a sobering reality on what a realistic timeframe for processing means.

In terms of the facts of the case, they are pretty straightforward for the claims on which the Complainant prevailed.  Doria R., as the Commission has renamed her, had been diagnosed with breast cancer, which had metastasized in her bones and caused her spine to be very brittle.  She had been in a car accident, which further exacerbated her spinal injuries and required surgery, and there was concern that she could become paralyzed if her spine was further injured.  The Complainant requested to telework full-time because of her surgeon’s concern that she should not commute to work on public transportation due to a risk of further injury. This request was denied because of alleged concerns about the Complainant’s productivity on days she teleworked.  She then requested one additional day of floating telework per week, which was also denied after the Agency repeatedly requested additional medical documentation.

The Commission noted, “providing disabled employees with the reasonable accommodations of telecommuting is consistent with the Rehabilitation Act’s goal of assuring ‘equality of opportunity, full participation, independent living, and economic self-sufficiency’ for individuals with disabilities.” The Commission further found that there was no justification for the Agency to request additional medical documentation, as what the Complainant provided substantiated that she was limited in major life activities and that there was a nexus between the requested accommodation and her limitations. In finding the Agency failed to accommodate the Complainant, the Commission also noted that the Agency did not present specific evidence that the Complainant’s productivity was lower on days she teleworked as compared to days she was in the office, that granting additional telework days would have impacted the Agency’s mission or would have otherwise caused an undue hardship.  The Commission also found that the Agency’s 10-month delay in responding to the request for telework, given that the Complainant needed the telework immediately and “each day the Agency failed to provide her with additional telework threated to exacerbate her serious medical condition, to the point of paralysis” rendered the delay unreasonable.

The Commission has clearly indicated to agencies that the days of denying requests for telework on the basis that an agency is not responsible for an employee’s commute to work are over.  I’m not saying that telework is always an appropriate or effective accommodation.  However, agencies should carefully examine such requests based on the Commission’s decision here, as well as in Lavern B. v. HUD, EEOC Appeal No. 0720130029 (February 12, 2015), and in other recent decisions. Sumner@FELTG.com

More to Learn from DVA

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By William Wiley, December 13, 2017

Thirty-nine years ago this month, all of us employment law practitioners began reading and re-reading the brand new “Civil Service Reform Act of 1978.” So much to know (and not know). New rules, new flexibilities; every agency developed an informal brain trust to figure out how this new law worked and what strategies to employ to take advantage of it.

Our friends at DVA are in the same situation right now. Last summer, Congress created new procedures that DVA could use in lieu of the traditional 5 USC Chapter 75 procedures to hold employees accountable for conduct and performance. Here at FELTG, we’ve predicted that these new procedures are effectively a test run and will be employed throughout the civil service if they prove to be successful at increasing DVA employee accountability.

Three of the major changes to the accountability procedures that come from the new DVA law are:

  • A shortened notice period between the day an employee’s removal is proposed and the day the employee can be removed from the payroll (from about four weeks to about three weeks),
  • A lowered burden of proof for misconduct removals (from a preponderance of the evidence (51%) to substantial evidence (~40%), and
  • A prohibition on a judge or arbitrator from reducing a penalty (no mitigation, no need to justify a penalty using the Douglas Factors).

Recently, we got an insightful question from a DVA reader who had read the law more closely than we had here at FELTG:

Good afternoon, I’m curious to hear your thoughts as to any benefits VA might have from issuing a 14-day suspension under 752 as opposed to a 15-day under 714.  There’s MSPB jurisdiction but no penalty mitigation and a lower burden of proof.

We weren’t really sure what the question was all about until we re-read the law. Guess what? These new 38 USC 714 procedures that allow for a lower burden of proof and no-penalty-mitigation apply to removals, demotions, and suspensions IF THE SUSPENSION IS 15 DAYS OR MORE. That means that for a shorter suspension, DVA has to use the old 5 USC Chapter 75 procedures that require a preponderance of evidence and penalty-justification.

Wow. How crazy is that? If our interpretation is correct, that it is easier to defend a long suspension than it is a short suspension, that throws DVA into a weird strategy position. Our advice would be something like this:

  • As a general rule, we can’t find any real benefit to a suspension and we find a number of drawbacks. Therefore, we recommend doing away with suspensions altogether and offering the employee a Reprimand in Lieu of a Suspension for a second or more serious offense. (Attend our January 23 webinar on Discipline Alternatives: Thinking Outside the Adverse Action for more detail on why suspensions really don’t work.)
  • If DVA wants to suspend in spite of there being no evidence that a suspension corrects misconduct, for non-bargaining unit employees, the shorter 14-day suspension is still the better option as it can be challenged only within DVA, thus avoiding an MSPB hearing.
  • For bargaining unit employees, we recommend avoiding short suspensions and using the 38 USC 714 option. We don’t want an arbitrator to apply Chapter 75 mitigation and preponderance to a suspension if we can help it.

These are fascinating times in government employment. As we’ve said often here at FELTG, Congress’s piecemeal approach to increasing accountability via segmented legislative action is going to create this sort of nonsensical anomaly. DVA, best of luck in figuring out how to use all of this new flexibility. The rest of the civil service can hardly wait to see how it turns out for you. Wiley@FELTG.com

What to Do if You’re the Victim of Workplace Harassment

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By Deryn Sumner, December 13, 2017

First, a joke.  My husband and I were walking down the street recently when he turned to me and asked, if Santa Claus knows if you’ve been bad or good, how did he not pick up on the fact that Rudolph was being bullied by the other reindeer in the workplace? I did not have a good answer for him. But I can share with you the EEOC’s guidance on what you should do if you believe you are being subjected to harassment in the workplace.

This article is on the front page of the EEOC’s website, which is unsurprising given that every news cycle brings reports of additional celebrities, politicians, directors and CEOs being accused of harassment. I for one am glad that these issues are being brought to the forefront and commend the brave women and men who are risking their careers and personal reputations to speak out against workplace harassment.

But back to the EEOC’s tips on how to respond to harassment in the workplace. The first tip is to tell the person who is harassing you to stop, so long as you feel comfortable doing so. Anyone who is familiar with what it takes to establish an actionable claim of harassment knows why this tip is so important. In order to establish an actionable claim of harassment, the complainant must demonstrate that the conduct was unwelcome. Going along with the inappropriate conduct, even if there is an imbalance of power or intimidation, opens the door to a defense that the interactions were consensual and therefore not unlawful.

The EEOC article next tells employees to check and see if the employer has an anti-harassment policy. As employees of the federal government, the answer is yes, and that policy is likely distributed on at least an annual basis. The policy should lay out how an employee can report harassment, but as the EEOC’s article mentions, you can and should speak to a supervisor (and it doesn’t have to be your own supervisor) about the conduct. As we all know, and as the EEOC’s article mentions, reporting harassment (either something you’ve been subjected to, or by opposing harassment you have witnessed) constitutes protected activity for which you are protected from retaliation.

If the Agency does not take appropriate steps to end the harassment, then, the article notes, private sector employees have the option to file a private sector charge and federal employees can proceed with the complaints process. The article is available on the EEOC’s website here: https://www.eeoc.gov/eeoc/newsroom/wysk/harassed_at_work.cfm

Sumner@FELTG.com

The New HHS Requirement for PIP Length

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By William Wiley, December 13, 2017

Recently, the Acting Deputy Secretary of Health and Human Services took the accountability-bull by the PIP-horns. Instead of leaving the length of a PIP to the vagaries of the various supervisors and management advisors within the 80,000-employee agency, effective immediately, PIPs at HHS generally are not to exceed 30 days in length, barring some CBA that states otherwise. In addition, the immediate supervisor administering the PIP is required to decide whether the employee performed acceptably during the PIP and initiate steps to implement that decision within seven days of the end of the PIP, if not sooner.

First, our congratulations to the leadership at HHS. Bravo! A poor understanding of the PIP process and a mistaken belief that somehow a longer PIP is either required by law or better for America has been a long-lasting problem in our civil service. It’s absolutely delightful to see an agency taking seriously our government-wide challenges with accountability and implementing a drop-dead easy first step to make things better for agency supervisors who are trying to get done the government’s work.

In response to this recent change, we got a question from a Concerned Observer (CO) who wondered if this change comported with due process. Separately, our CO wondered if the notice period in a removal was long enough to satisfy due process if it was only seven days. Apparently, in the CO’s agency, employees who were having their removals proposed were routinely being given 14 days to respond. Our response follows and may be helpful to those of you considering whether to follow the shorter-PIP lead of HHS:

As for the length of the response period in a removal and due process, the Constitutional due process requirement says that the citizen has to be given an opportunity to defend himself from the government before the government can take his property. Congress defined the length of an appropriate due process response period in 1978 when it passed the Civil Service Reform Act. Therein, it defined the reasonable response period to be seven calendar days, 5 USC 7513(b)(2). In the 40 years since then, no court nor the MSPB has ever held that seven days is a violation of due process and thereby an inadequate period of time to respond. Not. Ever.

In fact, there are situations in which the law allows for an even shorter response period. In a statute that applies only to law enforcement officers, if a LEO is found guilty of a felony, there is a LEO-specific statute that says fewer than seven days still satisfies the minimum due process requirements. Bottom line: There is no legal reason to give more than seven days’ notice in a proposed removal action.

As for whether a PIP longer than 30 days will increase the chance of success before the Board, in 40 years, a longer PIP has never improved the chances of agency success. Not. Ever. Of all the federal employees fired in the past four decades for poor performance, none has ever been put back to work on appeal to MSPB because the PIP was not longer than 30 days. In fact, in the history of our great country, going back to the Articles of Confederation, only one performance removal was reversed by the Board because the PIP was too short. That was when the Department of Agriculture used a three-day PIP back in the ’80s. Bottom line: I was chief counsel at MSPB for nine years. I’ve reviewed thousands of terminations on behalf of the Board’s Chairman. I know this stuff cold. A longer PIP does not help you.

In fact, a longer PIP makes you look foolish and like a waster of taxpayer dollars. Here’s why:

  • We hire employees who claim they can do a job. Unless specified as selected for a trainee position, new hires have to meet job qualification requirements when first employed.
  • Newly hired employees have to be given a couple of months to get used to a new position. MSPB calls this a warm-up period. After that, they should be fully functioning, successfully performing employees.
  • Prior to PIPing an employee, the supervisor has to have observed enough job deficiencies to reach the conclusion that the employee is performing unsuccessfully; that even though the employee said he could do the job when hired and has been given 60 days or so to get used to the job, he can’t do it. In the private sector, most employers would fire the employee at this point.
  • However, by law prior to firing a failing career federal employee, we have to give him an opportunity to demonstrate that he actually can perform, even though it appears he cannot. 5 USC 4320(b)(6). The law doesn’t say to “improve” to acceptable performance. This is not a “developmental” period. The law says to “demonstrate” acceptable performance. So, if we have an employee who said he could do the job when hired, and he has demonstrated to his supervisor he cannot do his job and does not deserve to be paid every two weeks because of his non-productivity, how much more Federal money should we spend to allow the guy to demonstrate whether he can do his job? We look foolish if we give more than 30 days. If the government were being run like a business, the individual would be given much less than that.

As for the seven-day decision-making period in the HHS Secretary’s new instruction, ask yourself this: If a supervisor has already decided an employee is a poor performer (a prerequisite to initiating a PIP), and has observed the employee closely and counseled the employee during the PIP (a requirement for a valid PIP), then how much more time does the supervisor need to decide whether the employee should be removed, given that each day the supervisor waits beyond the PIP to initiate a decision is a waste of taxpayer dollars?

In our practice here at FELTG, when we work with a supervisor to PIP an employee, the supervisor makes the decision on day 31 of the initiation of the PIP. Seven days, frankly, is generous. Put another way, a supervisor who cannot decide within a week of the end of the PIP whether we should keep paying an individual who has already demonstrated he does not deserve to be paid probably should be PIPed himself. Holding employees accountable is a fundamental obligation of every federal supervisor.

A large part of the length-of-PIP issue was caused by OPM. Way back in the early ’80s, OPM in its regulations coined the term “performance improvement period.” That’s of course, where we got the acronym “PIP” and those initials have come to be widely used throughout government since then. Unfortunately, the law that was passed in 1978 never called for an “improvement” period. Instead, it specifically called for a “demonstration” period. 5 USC 4302(b)(6). Those are two fundamentally different concepts. Want me to demonstrate whether I can play the piano? In 20 seconds you will know I cannot. Want me to improve my piano playing? That, my musical friend, will take weeks and months. (Dr. John is my New Orleans idol, musically and sartorially: https://www.youtube.com/watch?v=YcvudjjnFdo )

Sometime in the ’90s, OPM saw the error of its ways. Its regulations no longer call for an improvement period. Instead, they mimic the law and call for a “demonstration opportunity,” 5 CFR 432.104. Unfortunately, “DO” has not caught on and we continue to use the misnomer “PIP”, thereby mischaracterizing the purpose of the period and causing confusion as to a proper length.

As we have said many times, because of the frustration that Congress has had with our seeming inability to hold federal employees accountable, we are on the verge of losing our statutory civil service protections. In addition, a number of agencies are looking at serious reductions in the number of individuals they employ. Can you spell RIF? If your agency is routinely using PIPs of more than 30 days, then you are contributing to the problem. You are failing to efficiently hold employees accountable for non-performance, and putting yourself in a position in a RIF to release highly-productive junior employees because you have a crowd on more senior non-performers who will be retained in a reduction in force.

Keep PIPs, response periods, and decision-initiating periods short and America will be the better for it. Wiley@FELTG.com.

EEOC’s 2017 Performance and Accountability Report

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By Deryn Sumner, December 13, 2017

The Equal Employment Opportunity Commission recently issued its Performance and Accountability Report for Fiscal Year 2017. You can find the complete report here: https://www.eeoc.gov/eeoc/plan/upload/2017par.pdf

The bulk of the report focuses on the efforts made by the EEOC on obtaining relief for victims of discrimination in the private sector and before state and local governments. According to the report, the EEOC secured $484 million in monetary relief in fiscal year 2017, and $86 million in monetary relief for federal government employees and applicants. The report also referenced the reduction in pending private sector charges in what the Acting Chair of the EEOC diplomatically called a “resource-constrained environment.” The report also discusses advances in modernizing the private sector charge processing process by moving more aspects of the charge processing process to online. To that I can only offer my congratulations, and a hope that the EEOC will move towards modernizing more of the federal sector process in 2018 and beyond, including allowing complainants and their representatives access to the FedSEP (Federal Sector EEO Portal)system.

 

In terms of the federal sector process, the EEOC offers the following statistics for fiscal year 2017:

  • The EEOC resolved 4,284 appeals of agency decisions, including 85% of appeals that were more than 500 days old at the beginning of the fiscal year;
  • The age of those cases still pending at the Office of Federal Operations was reduced by 13.6%;
  • The EEOC categorized 100% of the pending appellate case inventory and 98.2% of new inventory into a new case management system;
  • With regards to cases pending at the hearing stage, the EEOC asserts that 70.1% of these cases had an initial status conference in FY 2017. The Commission noted that this metric will not reach 100% as not all cases require initial status conferences;
  • The Commission updated and released guidance including A Guide to Assist Federal Agencies to Provide Personal Assistance Services; Bathroom/Facility Access and Transgender Employees; and Proposed Enforcement Guidance on Harassment that Creates a Hostile Work Environment;
  • Finally, the EEOC issued 68 findings of discrimination (note, this refers to decisions from the Commission’s Office of Federal Operations, not initial decisions issued by administrative judges).

 

I appreciate the EEOC’s transparency to federal government employees and the federal taxpayer as to its progress on efforts to eradicate workplace discrimination.  Sumner@FELTG.com

FELTG Sues OPM

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By William Wiley, December 5, 2017

OK, OK. We haven’t really sued them YET. And it’s not REALLY a law suit. Instead, we’re going to go after something called a “writ of mandamus.”

For those of you who a) did not go to law school, or b) went to law school, and flushed your brain of things like this right after the bar exam, a mandamus is a judicial writ (something issued by a court) that commands another government entity to do something that the entity is required to do, but is not doing. See Marbury v. Madison, 5 US 137 (1803) (more or less).

So, what possibly could OPM have failed to do that would make the crew at FELTG do something that takes time and effort other than presenting training and providing consultation services? Easy. On December 23, 2016, the Administrative Leave Act of 2016 became law. Among other things (inter alia, if you’re feeling all lawyerly and Latin-esque), that piece of legislation created a new type of life-saving paid leave for use by federal agencies when confronted with a bad employee. Prior to the enactment of the act, OPM through regulation was directing federal agencies to keep employees in the workplace for 30 days even after their supervisor had decided that they should be fired.

Every reasonable person in the civil service knew that this was stupid. Individuals who have their removal proposed are under a great deal of stress and have the potential to become irrational or violent. In our society, just about anyone can own a gun. Sometimes violent people use guns to kill people. Therefore, keeping a federal employee noticed of a proposed removal in the workplace for a month where he can kill people is just freaking stupid. But that’s what OPM says should be done. 5 CFR 752.404(b)(3).

Thank goodness, the folks on Capitol Hill realized that this was not the way to handle potentially dangerous employees who have been notified of a proposed removal. In this new legislation, Congress said that federal agencies now have the option of placing such employees on a new type of paid leave: Notice Leave. Therefore, effective on December 23, 2016, agencies had this right and some began to use it. Hand the employee a proposed removal letter, and in that notice, tell that employee that he will be paid until a decision is made, but he is not to come to work and is to stay away from the federal facility where he is employed. Regular readers of the FELTG Newsletter might remember how we celebrated the passage of this bill as a Holiday Gift from Congress to the good people of our civil service. No longer would you have to unnecessarily risk your life to come to work when a coworker is notified of an impending removal.

Congress realized that implementation of the Act would take some effort on the part of OPM to draft new leave regulations. Therefore, it wisely set a 270-day time limit for OPM to do so, perhaps knowing that sometimes OPM does not act promptly to update regulations (e.g., implementation of the Americans with Disabilities Act Amendments Act of 2008 still conflicts with outdated OPM regulations on medical exams).

That 270-day time limit expired on September 17, 2017. Today is the 347th day since the law became effective. We may not be too good with the math here at FELTG, but we think it’s fair to say that OPM has failed to comply with the requirements of the law.

So, who cares? Well, you should. A number of agencies have mistakenly concluded that the Notice Leave law cannot be implemented until OPM issues its regulations. That’s obviously wrong because every graduate of a high school civics class knows that laws become effective (unless specifically denoted in the bill otherwise) the day the President signs the legislation. If you work in an agency that is not taking advantage of Notice Leave to get potentially violent people out of the workplace because OPM has not issued regulations, your life is in danger.

So that brings us to this writ of mandamus. OPM was obligated by law to act by this past September. It has not. Therefore, the situation is ripe for a federal court to direct them to issue the darned regulations upon threat of a contempt of court order. All it takes is somebody to petition a federal court to make OPM do what it is required by law to do. Is your agency going to do it? No, OPM is your sister agency. We don’t (usually) have one federal agency challenging another federal agency in federal court. Are you going to do it? No, you’re too busy running the government. Are we here at FELTG going to do it?

Darned straight we are.

OPM, consider this your notice. You’ve got 30 days. Either issue the regulations that Congress directed you to issue by the end of the year, or we’re going to figure out how to petition our local federal district court for a writ of mandamus to order you to do it. And we do mean “figure out” because we have no idea how to do it. Fortunately, we have law books that have been sitting in boxes in the basement for years, and then there’s The Google.  It can’t be that hard. And if we can convince a judge of the harm so that we have standing, it should be a slam-dunk legal decision. The Notice Leave law is specific and not discretionary. It is hard to imagine that OPM could muster an argument that it is not bound by a specific law.

We don’t want to do this. We’d much prefer to see federal agencies follow the law. However, when that is not being done, and when the lives of civil servants are at stake, we spring into action. OK, OK; maybe “spring” is not exactly the verb we are looking for, but you get the idea. If we have to do this, if we can get a court to issue a mandate, then along with Marbury v. Madison, law students might someday have to study the historical case FELTG v. OPM.

And if a writ of mandamus works to get us some new OPM regulations, maybe it’ll also work to get us some new Board members over at MSPB. We are shameless when it comes to protecting the civil service.  Wiley@FELTG.com

Errata:  A few weeks ago, we published a little article about the impact of the new law that allows DVA to fire bad employees more easily than in other agencies. Within that article, we hypothesized that with the new law making it so much easier to hold bad employees accountable, the DVA employee relations practitioners might now have the opportunity to take up golf and spend time with their families. Well, man-o-man, did that light up the old in-box. We now stand informed that the staff at DVA is still working endless hours to hold employees accountable, declining hobbies, and ignoring their kids and spouses, just like before. The main difference is that they are now able to hold EVEN MORE employees accountable, and have yet to cut back on their time commitments. We stand corrected, and take our hats off to our DVA colleagues for your hard-working commitment to a greater civil service.

Collateral Attacks: Cooler Sounding Than They Actually Are

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By Deryn Sumner, November 20, 2017

Collateral attack.  Sounds pretty cool on its face, like a move you’d use to take down your opponent in a street fighting video game.  In reality, it’s just a basis for an agency to dismiss a formal EEO complaint because the complainant is attempting to use the EEO process to go after an entity outside of the jurisdiction of what’s covered by Title VII and the accompanying other civil rights statutes.

Okay, so not as cool as it sounds.  But what are examples of collateral attacks?  Well, as the EEOC recently, and precisely, stated, “[a] claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s proceeding, such as the grievance process, the unemployment compensation process, or the workers’ compensation process.”  Katherina A. v. United States Postal Service, EEOC Appeal No. 0120172007 (September 22, 2017).  In Katherina A., the complainant was trying to assert that her supervisors discriminated against her when they allegedly submitted inaccurate information to the Department of Labor regarding a workers’ compensation claim that the complainant filed.  The agency dismissed it as a collateral attack and the Commission agreed, noting its prior precedent that claims related to the merits of a workers’ compensation claim cannot be brought before the EEOC.

But there are more types of collateral attacks than just those involving grievances, unemployment claims, or OWCP claims.  Collateral attacks can also take the form of claims involving application and approval for disability retirement.  For example, in Jae S. v. United States Postal Service, EEOC No. 0120171832 (July 14, 2017), the Commission affirmed a dismissal of a claim of race, sex, disability, and reprisal discrimination where the complainant alleged that management improperly stated he had performance and ethics issues in responding to OPM regarding his application for disability retirement.  The Commission agreed that it was inappropriate for the complainant to use the EEO process to collaterally attack something that took place before OPM.

An agency can also dismiss claims on the basis that they constitute a collateral attack on entitlement to FMLA.  For example, in Edmund L. v. United States Postal Service, EEOC Appeal No. 0120171050 (September 14, 2017), the Commission agreed with the agency that an allegation that the agency discriminated against the complainant when management failed to follow FMLA regulations was under Department of Labor’s jurisdiction.  The Commission affirmed the dismissal of that claim as a collateral attack and outside of the EEO process.

Finally, collateral attacks can also be used as a basis to dismiss claims involving internal agency investigations, such as in Nerissa S. v. Department of Army, EEOC Appeal No. 0120171616 (September 20, 2017). There, the complainant alleged that agency management officials interviewed during a criminal investigative division (CID) investigation, “intentionally provided false, misleading, and incomplete information to the CID investigator, and advocated bringing a False Claims Act lawsuit against her.” The Commission agreed that this constituted a collateral attack on the CID investigation and affirmed dismissal of the claim.

While collateral attacks may not be as cool in reality as they sound, they are a useful tool for agencies to ensure that claims raised in EEO complaints are properly within the EEOC’s jurisdiction.  Sumner@FELTG.com

Agency Shows It Would Have Been Undue Hardship to Grant Unpaid Leave to Employee as Religious Accommodation

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By Deryn Sumner, November 15, 2017

Although we see many more cases involving claims addressing the federal government’s obligation to accommodate employees with disabilities, the federal government also has an obligation to reasonably accommodate employees’ religion.  In both types of accommodation, an employer can assert that providing the requested accommodation would pose an undue hardship to the employer’s operations.  The definition of “undue hardship” when responding to requests to accommodate an employee’s religion is less onerous than when responding to requests to accommodate an employee’s disability.

The Commission’s regulation at 29 C.F.R. 1630.2(p)(1) defines “undue hardship,” in considering requests to accommodate disabilities, as “significant difficulty or expense incurred by a covered entity,” and lists five factors that should be considered, all of which consider the overall cost to the facility and the agency as a whole, and the impact on the operations and the other employees.

Looking at “undue hardship” under the lens of religious accommodations, the regulation at 29 C.F.R. 1605.2(e), an employer may assert that it cannot accommodate a need for accommodation if it would require “more than a de minimis cost” or if it would require a variance from a bona fide seniority system.

The Commission recently addressed a claim of religious discrimination in Allan F. v. United States Postal Service, EEOC Appeal No. 0120150643 (October 27, 2017).  The complainant, who was Muslim, worked as a full-time Mail Handler and submitted a leave form requesting 24 hours of LWOP from October 7-12, 2011 for “religious holiday season.” A few days later, the complainant submitted a second leave form requesting 40 hours of annual leave for a “choice vacation.”  The LWOP request was denied, but the annual leave request was granted.  The complainant filed an EEO complaint alleging religious discrimination when his request for 24 hours of LWOP was denied.  After receiving a Report of Investigation, the complainant requested a hearing. The Administrative Judge granted summary judgment in the agency’s favor, and the agency issued a final action adopting this decision, from which the complainant appealed to EEOC’s Office of Federal Operations.

On appeal, the complainant argued, in part, that the agency would have benefited financially by granting the request for LWOP instead of his request for annual leave, and that not being paid during this time was “part of the practice of his faith.”  You may be asking yourself, why didn’t the agency just grant the request for LWOP since then it wouldn’t have had to pay the employee?  Luckily, the agency articulated a legitimate, non-discriminatory reason for this. The agency denied the request for LWOP because of the needs of the service.  If the agency had approved the request for LWOP, it would have allowed another mail handler to be able to take annual leave, which “could have placed them over the maximum percentage of mail handlers off, leading to increased overtime and a financial burden on the Agency.” The agency also noted that LWOP is approved based on management discretion, while annual leave is granted in accordance with the collective bargaining agreement.

Now what about the complainant’s argument that the agency should have accommodated him by not paying him during this timeframe?  The Commission found that the agency made a good faith effort to accommodate the complainant because it granted his request for annual leave during the same timeframe and provided an alternative to the requested accommodation.  The agency was able to show that granting the requested accommodation of LWOP would have created an undue hardship, since there could be an increase in overtime if another mail handler requested to use annual leave during this same timeframe.  So, there you have it — a case where the agency showed granting LWOP would have cost more than approving paid annual leave.  Sumner@FELTG.com