Is There a Legal Path to Fire Dr. Fauci?

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By Deborah Hopkins, July 15, 2020

Here’s a hypothetical. Let’s say you have a U.S. President who is in office during a global pandemic, and that president gives an interview to a news outlet and says that the country is in “a good place” with how it is handling said pandemic.

Now let’s say that there’s a high-level career federal employee who works in infectious diseases who makes a statement to a different media outlet that goes something like this: “As a country, when you compare us to other countries, I don’t think you can say we’re doing great. I mean, we’re just not.”

Of course by now you know I’m not speaking in hypotheticals. As it goes with media sensationalism, one of the stories over the past few days surrounds the legality of the President firing Dr. Anthony Fauci, the head of National Institute of Allergy and Infectious Diseases (NIAID). Most FELTG readers are probably aware that Dr. Fauci’s statements on the COVID-19 pandemic have differed somewhat from those of the White House.

The question that is being asked on cable news, in media publications, and perhaps around dinner tables across the country: Can the president have Dr. Fauci fired?

The answer, based only on the evidence available to the public, is probably not. The President himself doesn’t have the authority to fire Dr. Fauci, who is a Title 42 employee and not a political appointee. But were the President to hypothetically order an official at HHS to fire Dr. Fauci, in order for the removal to be legal there would have to be cause — Dr. Fauci would had to have engaged in removable misconduct or poor performance.

Disagreeing with a President most likely does not fall into poor performance or misconduct. In fact, it is a prohibited personnel practice to make an employment-related decision because of a career employee’s political activities. While it may be acceptable for political appointees to be removed for differing opinions than those of their president, the fact that Dr. Fauci does not agree with the President about COVID-19 is NOT a valid reason to fire him.

We don’t know the details of Dr. Fauci’s work at NIH, so we can’t speak specifically to his performance or conduct on the job. However, misconduct, loosely defined, is the violation of a valid workplace rule.

Is a statement made in contradiction with the President misconduct? Probably not. Dr. Fauci doesn’t appear to have violated a workplace rule, as he has authorization to speak to the press about NIAID matters.

What about the list of the times Dr. Fauci “has been wrong on things,” recently compiled by White House. Do these statements rise to the level of poor performance? Without seeing Dr. Fauci’s performance plan, I cannot say for certain.

If Dr. Fauci is fired for any reason, whether it appeared to be legally valid or not, he could appeal his removal to the MSPB and let the Board (if we ever get one, that is) decide whether he engaged in misconduct or poor performance.

In case you’re wondering how Title 42 employees have civil service protections, here’s a brief lesson from Lal v. MSPB, Fed. Cir. No. 2015-3140 (May 11, 2016). Title 42 says that individuals may be “appointed” under Title 42 without regard to the civil service laws. A different statute gives agencies dealing with certain non-Title 42 employees the authority to “appoint[ ]…and remove[ ]… without regard to the provisions of title 5…” Reasoning that Congress saw a significance in the latter situation to include the authority “to remove” and that Congress did not specifically include the authority “to remove” in Title 42, Congress did not intend for Title 42 removal authority to be without regard for civil service protections. So, in sum Title 42 employees are hired under special authority but when it comes to being fired, they get the same protections as most of you in the FELTG Nation. And that includes Dr. Fuaci.

Interesting times, aren’t they? I’ve got some ideas for follow-up discussion and would love to incorporate your thoughts and questions into the content. So, what’s on your mind? [email protected]

More About that Employee Who Left His Laptop Charger at Work During the Pandemic

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By Deborah Hopkins, June 23, 2020

Last week, we published an article about an employee who left his laptop charger in the office at the beginning of the COVID-19 pandemic. The employee claimed he worked 40 hours a week for eight weeks, even though he later admitted he had done no work during that time. I characterized it as an open-and-shut case. It wasn’t seen that way by a number of you in FELTG Nation.

If you haven’t read the article, or didn’t read it closely, I urge you to take a look before you continue reading this article.

Many of our readers had comments, and some strong feelings, about the matter. Most of the feedback fell into three areas:

  1. The potential existence of a backup charger or at-home computer alternative.
  2. The investigation of IT records to see if the employee was working through some other mechanism.
  3. The issue with supervisor not tracking the employee’s [lack of] work product.

Below are some of the comments we received in each category, followed by an official FELTG response:

The Forgotten Charger

FELTG reader comments:

  • Some years back I was sent out of state on a business trip and forgot my charger. I…drove over to a Best Buy, and got a new power cord. Problem solved in about one hour. In today’s COVID world, I’d probably buy one from Amazon. But just because the employee forgot his power cord isn’t evidence the employee wasn’t working. How about checking on his output??
  • Perhaps the employee simply opted to buy another charger or had a reasonable substitute already at their home – they are readily available.
  • In reply, the employee will obviously claim he had another charger cable at home (and he could’ve purchased on Amazon).
  • I have a docking station, monitor, and mouse of my own for my home office.
  • Does the agency allow the employee to work on his own personal device from home?
  • Most likely there was a back-up charger. I have been telecommuting for 4 months and my charger burnt out twice. I was out of commission for a week.
  • Admittedly I did this and worked on my desktop for all of quarantine.

Official FELTG response: All excellent points, and details you would absolutely want to find out during your management inquiry or misconduct investigation. If the employee was allowed to use a personal device, or bought a backup charger, or had a docking station for his laptop at home, then as long as he was working the 40 hours a week he claimed, we don’t have misconduct.

The employee’s misconduct was lying on his time card – not leaving his charger at work. If you look closely at the article’s application of the five elements of discipline, you’ll see the employee was charged with the time and attendance violation, not leaving the charger in the office. A disciplinary charge of “leaving your laptop charger at the agency” may not rise to the level of misconduct, especially if it was accidental.

IT Records

FELTG reader comments:

  • Most agencies can see if the network was accessed or logged into.
  • The one thing I may do is have IT perform an evaluation of his computer usage as further confirmation that he hasn’t logged on and worked.
  • The IT people should be able to audit access to the [employee’s work] files, if nothing else.

Official FELTG response: In some cases, you would want to pull IT records to verify if the employee was working at all. Let’s modify the hypothetical a bit and say the employee was working on a personal device through the agency’s VPN, and claimed 40 hours of work a week, but the supervisor suspects he was working less. A search of IT records could show the amount of time the employee was on the VPN to give the agency a better idea of how much potential time theft was involved. Other considerations, such as whether the employee does work that does not require computer or VPN use, would also be relevant.

But in the original hypothetical, the employee admitted he did not work at all. Yet, he claimed 40 hours a week. That admission is preponderant evidence, so the agency could propose discipline based on that evidence alone. Yes, the IT records would provide additional evidence, but they wouldn’t be required because the burden of proof in discipline cases is only preponderant evidence – or substantial evidence, at the VA.

Supervisor Oversight

FELTG reader comments:

  • The burning question in my mind is how could the supervisor not know there was a problem; when you send people home to work, it doesn’t mean you don’t keep tabs on what they’re doing daily. Why wasn’t the supervisor communicating on at least a weekly basis and asking for accountability, not just of this employee but every employee?
  • Simplest way to check up is to ask to see work product if you doubt. Why are they having to use “inference” of a power cord sitting at the office rather than checking with IT for emails, and checking other systems for evidence of work? Seems to me the supervisor needs at least a counseling for failing to do his job as well!
  • Should we also address the supervisor who failed to see no work from this employee for months?
  • There should have been ways for management to create check points/milestones or activity goals to ensure this person was working.
  • If I was the said employee’s supervisor, I would be a little concerned about my own “failure to supervise” allegation.

Official FELTG response: Right on! This hypothetical supervisor failed to monitor the employee’s work, because no work product in eight weeks is unacceptable in any government job. As the previous article alluded, we could write another article entirely on the supervisor’s potential performance and misconduct issues.

Thanks, as always, for your responses. We loving hear from you, and enjoy the conversations. For a more in-depth discussion on related topics, be sure to join us July 1 (that’s next week!) for the 75-minute webinar Performance and Conduct Problems During the COVID-19 Pandemic: Holding Remote Employees Accountable. [email protected]

He Claimed He Teleworked for 2 Months, but His Laptop Charger Was at the Office

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By Deoborah Hopkins, June 17, 2020

Here’s a timely hypothetical that recently came across the FELTG desk:

Dear FELTG,

My agency sent all employees home to telework starting at the beginning of April. Hypothetically, the agency learned that an employee left his computer power cord in the office before he started teleworking, but he has been submitting 40 hours a week on his time sheets for the past two months. His computer charge lasts approximately 6 hours, and the employee’s work tasks requires use of the computer all day, every day.

I’ve been advised that investigating this misconduct would be too difficult because there wouldn’t be witnesses to attest the employee wasn’t working, and that our agency can’t discipline the employee anyway because of the current situation with the pandemic. Do you have any thoughts on this?

And our FELTG response.

Thanks for the note, FELTG reader. This one seems so easy to me. The employee is claiming pay for a large amount time when he did not work (approximately 320 hours), which is an egregious act of misconduct.

As members of FELTG Nation know, in order to discipline a Federal employee for misconduct, the agency must follow the five elements of discipline.

1 – Is there a rule? Yes, of course. Federal employees can’t lie on their time cards. It violates Federal statute to do so. See, e.g., 18 U.S.C. § 641; 18 U.S.C. § 287; 18 U.S.C. § 1001; 31 U.S.C. § 3729.

2 – Does the employee know the rule? Yes, every Federal employee receives training on how the time and attendance system works and is told their input must accurately reflect their schedule. In addition, most employees are subject to some version of the following when filling out their time and attendance records: “I certify that the time worked and leave taken as recorded on this form is true and correct to the best of my knowledge.” Moreover, the employee must click “Affirm” to validate, or sign their name if they submit a paper time and attendance form.

3 – Do you have proof the employee broke the rule? The standard here is preponderant evidence (or substantial evidence, if you’re covered by the new VA law). The employee has been at home for two months and has admitted he has not had a power cord for the laptop the entire time, and has done no work, yet he has submitted for full pay every day. Is this preponderant evidence? Sure it is. Your evidence is the employee’s admission. Remember, preponderant evidence – more likely than not – is all you need, and the employee’s admission meets that standard. There is also presumably evidence he is not working because no work has been submitted during this time. (There’s also a supervisory issue here, because a supervisor should be aware if an employee has not turned in any work in two months. But that’s another article.)

4 – Justify your penalty. Most agencies are required to justify a penalty by using the Douglas factors. A good starting point is to add up the amount of money the employee claimed and was paid, for time not actually worked. That amount, whatever it comes to, is an egregious misuse of taxpayer dollars. You can also address the loss of trust and confidence in the employee, plus any other Douglas factors that aggravate the penalty such as past discipline, employee performance, and rehabilitation potential. The COVID-19 pandemic might be a mitigating factor for some employee misconduct (for example, an employee did not log on to a web meeting because they were taking care of a child who was sick with the coronavirus and had a 103-degree fever), but in this hypothetical case a pandemic does not forgive, or even mitigate, two months of serious ongoing misconduct.

5 – Provide due process. You’ll complete these steps:

  • A proposal letter containing the charge(s) and penalty
  • The employee can respond to the charge(s)
  • An impartial decision

As far as the charge is concerned, in addition to the falsification/claiming time not worked/whatever you call the misconduct here, there could easily be another charge for the employee not alerting the supervisor that he left his laptop charger in the office and had no way of doing his work. Your agency telework policy likely mentions a process employees should follow if they have technical issues while on telework, and at the very least you can justify that the employee should have known that when he was on telework he was expected to work, and that if there were problems, he should alert the agency as soon as possible.

This scenario is not uncommon, unfortunately, and we will be addressing similar challenges on July 1 during the webinar Performance and Conduct Problems During a Pandemic: Holding Remote Employees Accountable. [email protected]

DOP, DP, ODAP, OIP, PIP: Is it Just Me, or Have Performance Monikers Gotten Confusing?

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By Deborah Hopkins, June 17, 2020

There are a few items in President Trump’s May 2018 Civil Service Executive Order Trifecta with which I don’t necessarily agree. But there are a lot of provisions that actually mirror what FELTG has been teaching for two decades. Among the items that I really like is the directive that employees with performance problems (those performing at an unacceptable level on any critical element) should be given a final opportunity to demonstrate acceptable performance, not to exceed 30 days.

After this EO came out, some agencies revamped their performance policies and changed the language from the existing focus on performance improvement by utilizing a Performance Improvement Plan (PIP) to some other moniker that gives the employee a 30-day opportunity to demonstrate he can perform their job at an acceptable level. The demonstration emphasis more accurately mirrors the language of the statute found at 5 USC § 4302(c)(6). An opportunity to improve could go on for quite a long time, perhaps interminably; an opportunity to demonstrate whether you can do the job you were hired to do shouldn’t take more than three or four weeks.

For what it’s worth, “Acceptable” performance is whatever the line is above Unacceptable – so if your agency has a 5-level rating system then Marginal/Minima/Partial standards count as acceptable performance. That’s right, be minimal is the goal. [“Hey, problem employee: We at the agency would consider it acceptable if you would bring your performance up to minimal. If you do that, you get to keep your job forever.” What a target, huh?]

But, I digress.

Back to poor performance. Articulating the acronym “PIP” is easy. It rolls off the tongue and almost everyone knows what it means. But I am trying to break my PIP habit (two years later), and call it something more appropriate. In the textbook UnCivil Servant: Holding Employees Accountable for Performance and Conduct (now in its 5th Edition), Bill Wiley and I call this 30-day opportunity a Performance Demonstration Period, or DP.  But in my travels across the country to agencies near and far (before the pandemic, when I was on a plane almost every week), and my more recent time in front of a virtual training screen, I have learned there are now several permutations to what Federal employees call this DP.

Demonstration Opportunity Period

  • Acronym: DOP
  • Agency using it: USDA

Opportunity to Demonstrate Acceptable Performance

  • Acronym: ODAP
  • Agency using it: HHS

Notice of Opportunity to Demonstrate Acceptable Performance

  • Acronym: NODAP (As far as I can tell, NODAP is an informal acronym and does not exist in writing in the agency’s policy, but it makes sense to me.)
  • Agency using it: DOI

Opportunity Period

  • Acronym: OP
  • Agency using it: OPM. This is unofficial and hasn’t been verified by the powers-that-be, but we have heard rumors from students that the very agency which gave us the term “PIP” now has adopted a more correct moniker.

Opportunity to Improve Performance

  • Acronym: OIP
  • Agency using it: HUD. As far as we at FELTG can tell, this policy has not been changed to reflect the language of “opportunity to demonstrate” rather than the “improve” language its name reflects.

Performance Improvement Plan

  • Acronym: PIP
  • Agencies (still) using it: Commerce, State, DOD, DHS. It’s interesting. If what I am seeing on these agencies’ websites, where the policies are posted, are up-to-date, a number of agencies – headed up by President Trump appointees – seem to be ignoring the EO’s mandate to move away from the improve/PIP mentality.

So, whether you DOP, OP, POP, ODAP, NODAP, OIP, DP, or PIP, remember the purpose is to allow the employee an opportunity to demonstrate acceptable performance per 5 USC §4302(c)(6), and not to allow the employee a perpetual opportunity to incrementally get better. [email protected]

Breaking News: SCOTUS Says Federal Law Protects LGBTQ Workers From Employment Discrimination

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By Deborah Hopkins, June 15, 2020

This morning, the Supreme Court issued a decision in Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, 590 U.S. ______ (Jun. 15, 2020). The 6-3 decision was written by Justice Gorsuch. He was joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan.

The question before the Court was whether an individual’s sexual orientation or transgender status was covered under Title VII’s prohibition against sex discrimination. The Court ruled that “The answer is clear. An employer who fires an individual for being ho­mosexual or transgender fires that person for traits or ac­tions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” (p. 2).

AT FELTG, we’ve reviewed the decision and will be re-reading it to be sure we glean all the relevant information. After the initial read, we’ve pulled out couple of interesting points the Supreme Court discussed:

  • If sex was one but-for cause for discrimination – not the motivating factor or the only cause – then Title VII applies. (p. 6)
  • Employers who seek to avoid liability because they discriminate against men and women who are LGBTQ do not avoid liability – they double their exposure to liability because the language of Title VII talks about discrimination against individuals. (p. 9)

A few takeaways directly from the language of the case include:

  • [A]n employer who intentionally treats a person worse because of sex— such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discrimi­nates against that person in violation of Title VII. (p. 7)
  • From the ordinary public meaning of the statute’s lan­guage at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it inten­tionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the em­ployer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to dis­charge the employee — put differently, if changing the em­ployee’s sex would have yielded a different choice by the em­ployer — a statutory violation has occurred. (p.9)
  • The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s be­cause it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. (p. 9)
  • [H]omosexuality and transgender status are inex­tricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some dispar­ate impact on one sex or another, but because to discrimi­nate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. (p. 10)
  • When an employer fires an employee because she is homo­sexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individ­ual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that in­dividual’s sex, the statute’s causation standard is met, and liability may attach. (p. 11)
  • We agree that homosex­uality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosex­uality or transgender status necessarily entails discrimina­tion based on sex; the first cannot happen without the sec­ond. (p. 19)
  • In Title VII, Congress adopted broad language mak­ing it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for be­ing gay or transgender defies the law. (p.33)

We’ll be going over this case in much more detail in future training events including an upcoming EEO Refresher webinar entitled The Latest on Sexual Orientation and Gender Discrimination in the Federal Workplace on July 9, and a virtual training session as part of FELTG’s special event Federal Workplace 2020: Accountability, Challenges, and Trends on July 29.

In the meantime, read the full decision yourself here. [email protected]

The Employee Who Refuses to Report to Work

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By Deborah Hopkins, June 9, 2020

Back in the day – before COVID-19 – there was a term we used for employees who refused to report to work: AWOL. Or, as our friends in the Navy call it, Unauthorized Absence. The pandemic has created a new scenario though, where a refusal to report to an agency work station might not be considered misconduct, depending on the circumstances.

As agencies start to bring employees back to the workplace, some are understandably wary about leaving the safety (and perhaps comfort) of their own homes and being put back in contact with the public once again. Some employees have more reason to be leery than others, particularly those in high-risk categories.

So, what should an agency consider when an employee expresses concern about returning back to the workplace while the virus is still killing 1,000 Americans each day?

According to OPM, agencies should work with employees and, if applicable, unions, to address return to work concerns even after agency management has determined that it is safe for employees to return. Once an agency has determined that sufficient conditions allow for employees to safely work in a given environment, employees can be expected to report to their worksite unless they are in an approved leave status.

Before issuing an order requiring employees to report to duty onsite, and when considering discipline based on non-compliance with a reporting requirement, agencies are encouraged to consider all facts and circumstances in each case. Among these considerations:

  • An employee’s vulnerability to serious complications if infected with the virus,
  • The presence of an individual in a CDC-identified high-risk category in the home, and
  • Child care or other dependent care responsibilities resulting from daycare, camp, or school closures.

Agencies should determine if other options are appropriate, such as allowing employees to continue to telework or asking them to request personal leave.

If the worksite is in a jurisdiction still subject to restrictions related to COVID-19, agencies should also consider the terms of any such restrictions as well as employee concerns about their safety in the workplace or during commuting, and determine if steps can be taken to mitigate those concerns.

FELTG readers know that federal employees are required to follow supervisory orders, including orders to report for duty, but they may legally refuse orders that would cause “irreparable harm.” These categories, found in MSPB case law, include orders that:

  • Are Illegal, whether the order itself is illegal, or obeying the order would be an illegal act.
  • Are immoral.
  • Require an unwarranted psychiatric examination.
  • Require an employee to forego a Constitutional right.
  • Are unsafe.

We know the first four are not at issue here; safety is the key. The question becomes: What is the balance between working to fulfill an agency’s mission while guaranteeing employee safety and protecting against irreparable harm?

For most employees, contracting COVID-19 would probably not cause irreparable harm. Recent data suggests a large group of the people infected – perhaps even 80% – are asymptomatic. But for a subset of employees in high-risk categories, contracting the virus could very well cause irreparable harm in the form of long-term or permanent health issues. Adding to the complication is that this virus is new, and we don’t have any information about its long-term effects.

So, where does that leave us? If an agency has determined that it is safe to return to the workplace, an employee’s subjective belief that it is not safe – especially if that employee is not in a high-risk category – will probably not be enough to have a disciplinary action for AWOL overturned.

Only time, and cases when we get them, will tell.

I think that agencies should try to be as flexible as possible, as employees are dealing with unprecedented challenges. But at the end of the day, your agency needs to fulfill its mission, and if an employee must be at work in order to do so, and work is a safe place, then the employee should be held accountable to report for duty. For more on this – and other virus-related workplace challenges – join FELTG tomorrow for the virtual training event Federal Workplace Challenges in a COVID-19 World: Returning to Work During a Pandemic. A few spots still remain. [email protected]

If You Leave an Intercontinental Ballistic Missile Unguarded, You’re Probably Getting Fired

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By Deborah Hopkins, May 20, 2020

A few weeks ago, I wrote an article about progressive discipline, and explained how a time-tested approach to discipline in the federal government provides for a “three strikes and you’re out” mentality, at least when it comes to minor workplace misconduct. There are times, however, when an employee engages in misconduct so egregious that the agency skips the first two steps in progressive discipline – typically a reprimand and a suspension – and jumps right to a removal. After all, an underlying tenet of progressive discipline is that, by disciplining an employee with increasing degrees of punishment, the employee is given the opportunity to learn from his mistakes. Castellanos v. Army, 62 MSPR 315, 324 (May 4, 1994). There are times, though, an agency determines the employee has done something so bad, he should not be given such a chance.

Let’s look at a few of those cases.

You were warned

Sometimes agencies choose to issue warnings to employees, rather than issue formal discipline. A warning is an aggravating factor that is most commonly used under the Douglas factor for clarity of notice: How clearly was the employee on notice that there was a workplace rule in place?

Take, for example, the GS-12 attorney with a discipline-free record who was removed based on two charges: Disruptive Behavior (two specifications) and Making Inappropriate Remarks (seven specifications, including referring to his supervisor’s writing as “crap,” making unseemly accusations, and using a sarcastic or intemperate tone). The agency had issued “four express warnings” and the employee still did not correct his behavior, so the agency proposed removal.  This appellant argued that he didn’t understand the warnings because the language used by the agency regarding “maintaining his composure” was confusing. Nice try, but that expression was an aggravating factor that expressed a lack of remorse. A GS-12 attorney should know what maintaining composure requires, so the MSPB upheld the removal. Pinegar v. FEC, 2007 MSPB 140.

One strike and you’re out

Some charges, by their very nature, have been recognized to be removal offenses even if there is no prior discipline. One such charge is Failure to Cooperate in an Investigation. Take a look at the following cases which all involved some version of an employee refusing to participate in agency-authorized investigations: Weston v. HUD, 724 F.2d 943 (Fed. Cir. 1983); Negron v. DoJ, 95 MSPR 561 (2004); Hamilton v. DHS, 2012 MSPB 19. Also check out Sher v. VA, 488 F.3d 489 (1st Cir. 2007) (Courts have repeatedly held that removal from employment is justified for failure to cooperate with an investigation).

Another charge where there’s not always another chance for the employee is Threat, or some version thereof (such as Making Disruptive Statements). In one such case, an appellant’s conditional threat that he would cut off his supervisor’s head warranted his removal despite a lack of prior discipline and four years of service. The agency successfully argued that such behavior affected the agency’s obligation to maintain a safe work place for its employees, thus impinging upon the efficiency of the service. Robinson v. USPS, 30 MSPR 678 (1986), aff’d., 809 F.2d 792 (Fed. Cir. 1986) (Table). A note to practitioners: If you’re going to charge Threat, you’re going to need to be sure you have evidence to support the Metz factors. Come to FELTG’s Workplace Investigations Week in Denver August 24-28 if you’d like to learn more about that.

Multiple specifications are aggravating 

Sometimes an employee engages in an act of misconduct several times, but has no disciplinary record because the agency hasn’t yet issued discipline (which, as a side note, contradicts my colleague Bill Wiley’s mantra “Discipline early, discipline often”). In those cases, the agency may choose to discipline the employee, and show the egregiousness of the conduct by listing multiple specifications, thereby justifying the penalty of a removal for a first offense of misconduct. A fairly recent case provides a perfect example of such a strategy: A first-offense removal was upheld because there were 10 specifications of continued sexual misconduct that occurred after appellant was asked to stop his inappropriate behavior. Adkins v. DoD, SF-0752-16-0294-I-1 (2016)(NP).

Harm or potential for serious harm

The Air Force has a rule: A Division 1.3 explosive must be attended at all times by its driver or a qualified representative of the motor carrier that operates it. One of our most-discussed-in-class cases at FELTG seminars involves a WG-09 Motor Vehicle Operator with 28 years of outstanding service, who left a truck with an intercontinental ballistic missile unguarded in a motel parking lot (keys in the ignition, doors unlocked) for 45 minutes, and then lied about to his supervisors when they confronted him. Though 28 years of service is a mitigating factor, and a discipline-free record is generally an asset, leaving a missile containing 66,671 pounds of explosive propellant unguarded was egregious enough to warrant a first-offense removal. Dunn v. Air Force, 96 MSPR 166 (May 24, 2004).

Remember, the goal of discipline should be to prevent future misconduct from occurring. But sometimes, employees go over the line and there’s no coming back. As long as your Douglas factors analysis supports removal, and the penalty is not grossly disproportionate to the offense, you’re free to remove an employee with a discipline-free record. For more on discipline, join FELTG for the Virtual Training Institute’s Taking Defensible Disciplinary Actions, June 1-3, or Developing & Defending Discipline, June 23-25 – from wherever you’re working. [email protected]

FELTG is Going Virtual – for the Summer, Anyway

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By Deborah J. Hopkins, May 14, 2020

These past several weeks have been challenging for all of us. Many of you in the FELTG Nation, and some of us in the FELTG family, have lost loved ones to COVID-19. There’s a lot of uncertainty about what the future holds, as some states begin to re-open while others remain on lockdown. Will things ever return to some semblance of normal? And if so, when?

We don’t have answers to those difficult questions, but we’ve been working hard to adapt as developments have changed almost daily. So out of an abundance of caution – and to allow you time to plan and prepare for the training you still need – we’ll be holding our open enrollment classes virtually through August. Since a number of your agencies aren’t allowing travel until who knows when, we want to make sure you have an opportunity to attend the full spectrum of live, instructor-led FELTG classes.

Here’s the breakdown:

Virtual Training

From half-day spotlight sessions to week-long seminars, and everything in between, the FELTG Virtual Training Institute has classes on topics including reasonable accommodation, performance, discipline and misconduct, leadership, dealing with union issues, leave abuse, understanding employees with PTSD, conducting harassment investigations, and more. Check out the upcoming schedule, which includes favorites such as Advanced Employee Relations, Developing and Defending Discipline, EEOC Law Week, Absence, Leave Abuse & Medical Issues Week, FLRA Law Week, and more.

Webinars

Some of FELTG’s most popular webinar series – including supervisory tools, EEO refresher training and Reasonable Accommodation in the Federal Workplace – are open for registration now. Plus, we have group discounts for employees who are teleworking due to the pandemic.

Onsite Training

When it comes to onsite training, we can bring you any of our classes virtually – or we’ll be happy to have an instructor come to you, if your agency has the space to provide enough social distance for the students and the instructors to gather while following CDC guidelines.

SPECIAL EVENT: FELTG Forum

Federal Workplace 2020: Accountability, Challenges, and Trends

The pandemic is making the possibility of attending summer federal conferences less likely each day. That’s why we’re launching the virtual training event Federal Workplace 2020: Accountability, Challenges, and Trends with 14 different live instructor-led sessions, July 27-31. You can attend as many sessions as you want, from one to all, or anything in between. Earn 8 EEO refresher hours. Earn CLE and Ethics credits. Learn the latest about how to handle the challenges facing federal agencies in 2020.

Because this is a virtual forum, you can attend from wherever you’re working – home or agency office, with no need to get on a plane. Check out the agenda below.

See below for the upcoming schedule of events, or visit www.feltg.com/events to see all the options on the calendar, by date.

We’ll continue to adjust our plans and approach as necessary, until this disease is under control, until it’s eradicated, or until there’s a vaccine. In the meantime, we hope you and your loved ones stay safe and healthy.

Take care,

Deb

Deborah J. Hopkins, FELTG President

Once Again, EEOC Discusses the Role of Agency Defense Counsel – But This Time, No Sanctions Involved

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By Deborah Hopkins, May 5, 2020

One of the most intensely debated topics in the EEO realm for years, has been the proper role of agency defense counsel in agency EEO investigations. Indeed, we’ve written articles in this newsletter about the topic. One of the more recent, hotly discussed cases was the July 2018 issuance of Josefina L. v. SSA, EEOC Appeal No. 0120161760. In this case, the Commission determined “… that Agency counsel impermissibly interfered with the investigation … We determine that OGC’s actions undermined the integrity of the EEO process by eroding the necessary separation of the investigative process from the Agency’s defensive functions.”

Despite all the discussion about Josefina L., we didn’t really learn anything new or significant from the case. The Commission has previously held that an agency representative “should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator.” See Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014), recon. denied, EEOC Request No. 0520140438 (June 4, 2015). Josefina L. brought the debate to the front burner, yet again, and the SSA was slapped with a mild sanction, despite EEOC’s chiding in the case.

One of the problems we’ve had with understanding the EEOC’s position over the years is the weak sanctions they’ve issued when they found agency defense counsel to have crossed the line. Time and again, they issued decisions where the words seemed to say “I’m really mad,” and the actions seemed to say “But I’m not really that mad.”

Interference in the EEO process is one thing – and it’s a problem. But there is no law or regulation that specifically prohibits every single agency attorney from providing advice to supervisors during EEO proceedings, so long as the involvement does not impact the “impartial processing” of the case. Management Directive 110, Chapter 1, Section IV.

So where is the line between permissible and impermissible involvement? Practitioners for years have begged the Commission: PLEASE let us know, definitively, where the bright line can be located.

While the EEOC still hasn’t given us a bright line, the answer to the level of involvement permissible recently got a little bit closer to definitive in a recent case:

[W]e expressly hold that MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office. This means that agency defense counsel may assist agency management officials and witnesses in the preparation of their affidavits during the investigative stage. However, agency defense counsel may not instruct officials to make statements that are untrue or make changes to any affidavit without the affiant’s approval of such changes. [bold added]

Annalee D. v. GSA, EEOC Request No. 2019000778; App. No. 0120170991 (November 27, 2019).

This is yuuuuuuuge. For the past several years, the Commission has sanctioned agencies whose counsel were involved in almost any way. You’d find the occasional case that went the other way, but again the problem was no bright line. Sometimes interference was okay, as long as it wasn’t too much interference; other times, it wasn’t okay.

In the Annalee D. case, the EEOC had originally sanctioned the agency simply because the agency defense counsel was involved – without ever looking at the merits of the involvement. But to its credit, EEOC reversed itself, after the agency requested reconsideration: “In the underlying appellate decision, we found impermissible interference solely on the grounds that agency defense counsel provided assistance to management officials during the investigative stage and not because the provided assistance actually interfered with the EEO Office’s investigative process.”

Look at some of the other language form this case:

  • “Our decision in [Annalee D.] appears to set forth an absolute rule that prohibits agency defense counsel from participating in the pre-hearing stages of equal employment opportunity matters…There is no ‘bright line’ regarding the extent to which agency defense counsel may be involved during the pre-hearing stages of the EEO process. Rather, the issue of utmost concern to the Commission is whether the actions of agency defense counsel improperly interfered with or negatively influenced the EEO process.”
  • “[N]othing contained in MD-110 explicitly prohibits agency defense counsel from representing an agency manager during the counseling stage or bans agency defense counsel during the investigative stage from assisting an agency manager in preparing his or her affidavit or acting as a representative under the appropriate circumstances.”
  • “In recognizing the disparate yet vital responsibilities of the EEO Office and agency defense counsel, MD-110 recognizes that these entities will inevitably interact with each other. MD-110 sets out the parameters for these interactions and seeks to ensure that neither entity inappropriately interferes with the functions of the other.”

This is the best guidance we’ve seen from the Commission on the topic to date – well, it’s good if you’re on the agency side, anyway. And it clarifies the extent to which an agency can support a supervisor who has been accused of discrimination, and needs help understanding the process. Come to our virtual training class Conducting Effective Harassment Investigations May 18-20, or to EEOC Law Week in Washington, DC, in August (if the country is open by then) or September if you want to learn more about this topic, plus a whole lot more. [email protected]

How Do You Address Performance Failures During Emergency Telework?

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By Deborah Hopkins, April 15, 2020

Today as you read this, over a million federal employees are teleworking because of the COVID-19 emergency. Under OPM regulations, during an emergency an agency may assign any work considered necessary without regard to the employee’s grade or title, including assignments that an employee is given while teleworking.

We’ve seen this happen in recent weeks as agencies have issued evacuation orders and sent employees home on telework, even if the employees haven’t previously been cleared to work from home. In fact, a number of federal employees are currently at home, getting paid with nothing to do because they don’t have a computer and, therefore, have no way to telework – but they’re stuck at home because it’s not safe to come to work in virus-stricken areas. If one thing is sure, it’s an unprecedented time in the federal government, the country, and the world.

So, back to that OPM stuff. An agency can assign work the employee doesn’t normally do, but only if the agency knows the employee has the necessary knowledge and skills to perform the assigned work. Let’s use me as an example. I’m an attorney. Maybe while I’m working from home you assign me to attend virtual training classes, or to proofread some documents. That’s just fine. But you can’t assign me to do peer review on a scientist’s research, because I have no clue how to do that.

The assignment of alternative performance requirements raises an important question, though: How can an agency hold an employee accountable for performance while they are on emergency telework, if the performance failure is not covered by a critical element in the employee’s performance plan?

Since the Civil Service Reform Act was implemented in 1979, the law and regulations have set out clear requirements on how federal employees should be held accountable for poor performance. And if you look at 5 CFR 432, you’ll see that an agency can’t take a performance-based action unless the employee performs unacceptably in a critical element, after being given an opportunity to demonstrate acceptable performance.

So what’s an agency to do if it assigns a performance-related task to an employee who is on emergency telework for COVID-19, and the employee doesn’t complete the task, or performs the task poorly? In other words, using me as your hypothetical employee, what can you do if I don’t attend the virtual training or don’t review the documents, if I don’t have a critical element related to either of those things?

Does the agency have to accept poor, or even no, work performance? I think not.

The agency can’t hold an employee accountable under the performance procedures if the assignment doesn’t fit into a critical element, so the agency is now left with the option to take a 5 CFR 752 action, also known as an adverse action, against the employee. This rarely-used option has been permissible under the law for 40 years.

That said, there are a few drawbacks to handling a “performance” problem as an adverse action:

    • The burden of proof is higher (preponderance of the evidence) to take a misconduct-based action, than it is to take a performance-based action (substantial evidence). The exception is the employees covered under the new VA law, where the burden of proof is substantial for misconduct and performance actions.
    • If the failure to perform doesn’t cause significant harm, the agency may need to issue multiple disciplinary actions via progressive discipline, before it can remove the employee for the failures.
    • The agency would be required to justify its penalty in any discipline it issued beyond a reprimand.

So here’s what this situation would look like, if I’m your hypothetical employee:

You: Deb, I’m registering you to attend the three-day FELTG virtual training April 21-23, so you can earn your CLE credits and learn about legal updates while you’re teleworking. You need to attend all sessions.

Deb: Is properly registered for the sessions but doesn’t attend because she is binge-watching Veep.

You: [It’s April 24] Deb, here’s your reprimand for failure to follow supervisory instructions. Now, I need you to review this document, edit it, and have it returned to me by 3:00 p.m. on April 28.

Deb: [It’s April 29] Sorry, I didn’t get a chance to review that document yet. I’ve been busy on other things.

You: Deb, here’s your proposed 3-day suspension (or reprimand in lieu of suspension, if you prefer) for failure to follow supervisory instructions.

Does this make sense? The law doesn’t require an agency to pay an employee to sit at home and do nothing during a pandemic, if there’s work the agency can assign the employee. But if the work doesn’t relate to a critical element, the agency must use the misconduct procedures to hold the employee accountable. Interesting times, aren’t they? [email protected]