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EEOC Executive Leadership Conference. A Primer on Federal Personnel Law. Bill Bransford Shaw, Bransford & Roth, PC www.shawbransford.com. T E N D E N C Y. C O R R E C T. 5 U.S.C. § 7513. …an agency may take an action (suspension of more than 14 days, demotion or removal)

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a primer on federal personnel law

EEOC Executive Leadership Conference

A Primer on Federal Personnel Law

Bill Bransford

Shaw, Bransford & Roth, PC

www.shawbransford.com

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5 u s c 7513
5 U.S.C. § 7513
  • …an agency may take an action (suspension of more than 14 days, demotion or removal)
  • Against an employee (non-probationary)
  • Only for such cause as will promote the efficiency of the service
efficiency of the service
Efficiency of the Service
  • Elastic concept encompassing nexus
  • Showing “Efficiency of the Service” is part of the agency’s burden of proof in adverse action cases
efficiency of the service1
Efficiency of the Service

In dealing with any problem employee, supervisors should focus on the question of why correcting the problem will make the agency more efficient and/or make it easier to accomplish the mission.

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Nexus can be shown in eitheron duty misconductORoff-duty misconductIFthere is a link to the agency’s mission and/or efficiency.

common barriers to dealing with problem employees
Common Barriers to Dealing with Problem Employees
  • Will file grievance or EEO complaint
  • Too much time and documentation
  • Process is too complicated
  • Have to overcome past practices
  • Problem will go away if you ignore it
  • Lack support from upper management
employee appeals
Employee Appeals
  • Merit Systems Protection Board (under DHS system, streamlined process at MSPB)
  • EEO Complaints
  • Union Grievances
mspb appeal process
MSPB Appeal Process

Initiate Appeal at MSPB within 30 Days

Discovery

Hearing

Decision

Appeal to full Board (PFR)

Decision

Appeal to Court of Appeals for the Federal Circuit (PFR)

manager s role in mspb process
Manager’s Role in MSPB Process
  • Agency has burden of proof

(except on affirmative defenses)

  • To provide evidence to support reasons for action
  • To rebut employee’s affirmative defenses
federal sector eeo process
Federal Sector EEO Process

EEO Counselor contact within 45 Days

ê

EEO Counseling for 30-90 days

ê

Formal complaint filed if unresolved

ê

Agency investigates within 180 days

ê

çEmployee elects forum è

ê

EEOC

ê

Discovery

ê

Pre-hearing settlement

ê

Pre-hearing conference

ê

Hearing

ê

Decision

ê

Appeal to Commission

ê

Court

Court

ê

Civil Action Filed

ê

US Attorneys Answer

ê

Discovery

ê

Settlement Negotiations

ê

Pre-Trial

ê

Trial by Jury

ê

Appeal to higher court

Final Agency Decision

ê

Court

anti discrimination in employment
Anti-Discrimination in Employment
  • Employee Protected Categories
  • Race
  • Color
  • Gender
  • National Origin
  • Religion
  • Age (40 or older)
  • Disabilities
  • Participating in EEO process
  • Opposing discrimination
  • Categories Not Protected
  • Personal hygiene
  • Personal Appearance
  • Personality
  • Capabilities
  • Attitude
  • Employer Conduct Covered
  • Hiring
  • Firing
  • Failing to promote
  • Demotion (lost pay)
  • Reassignment (significant)
  • Material loss of benefits
  • Hostile work environment
manager s role in eeo process
Manager’s Role in EEO Process

Employee has burden of proof

  • To support legitimate

non-discriminatory basis for action complained of

grievances
Grievances

Union:

  • Governed by collective bargaining agreement between union and agency

Non-Union:

  • Governed by agency regulations
manager s role in grievance process
Manager’s Role in Grievance Process

Agency has burden of proof

  • To provide evidence to support reasons for action
  • To rebut employee’s affirmative defenses
office of special counsel
Office of Special Counsel
  • Investigates PPP’s
  • Seeks Disciplinary Actions
  • Seeks Corrective Actions
  • Emphasis on whistleblower reprisal
manager s role in osc matter
Manager’s Role in OSC Matter

Burden of proof depends on type of case.

  • To provide evidence to support challenged action
  • To rebut claims of PPPs
manager s toolbox
Manager’s Toolbox
  • Human Resources/Employee Relations
  • General Counsel’s Office

Why use these tools?

alternative dispute resolution
Alternative Dispute Resolution
  • Agency program required by EEOC Regulations for EEO Cases
  • Incorporated into grievance process
  • Opens lines of communication between the parties
preponderance of the evidence
Preponderance of the Evidence

The degree of evidence the administrative judge (or other fact finder) would accept as sufficient to find that a contested fact is morelikely true than untrue.

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An employee can defend against a disciplinary or adverse action by disputing the agency’s evidence and by raising anaffirmativedefense.

affirmative defenses must be proved by employee
Affirmative Defenses * must be proved by employee *
  • Prohibited Personnel Practices
    • Including:
      • Discrimination
      • Whistleblower Reprisal
  • Harmful Procedural Error
  • Mistake of Law
documentation why do it
Documentation: Why Do It?
  • Creates contemporaneous record
  • Serves as a memory jogger/refresher
  • Helps HR/Supervisor determine if/when follow-up action is necessary
  • Can be evidence to support subsequent personnel action
more reasons to document
More Reasons to Document…
  • Can help resolve credibility issues, especially in one-on-one situations
barriers to documentation
Barriers to Documentation
  • Takes too much time
  • Union contract imposes burdens on management
  • Employee might find out
  • Feels wrong to do it
documentation dos don ts
Documentation Dos & Don’ts

DO

  • Keep contemporaneous notes.
  • Write enough detail so event is clear and information will help your recall what occurred.
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DON’T

  • Call employee names or use offensive language.
  • Make reference to protected activity (EEO, grievances, etc.).
adverse action process
ADVERSE ACTION PROCESS

Employee is entitled to DUE PROCESS, including:

  • Advanced written notice of charges and specifications
  • Access to evidence relied on by the agency
  • Opportunity to respond to charges, orally and in writing
  • Representation by an attorney or other person (if no conflict)
  • A written decision stating the specific reasons supporting it
keys for avoiding due process snafus dps
Keys for Avoiding Due Process Snafus (DPS)

To keep your misconduct action ironclad

  • Avoid exparte communications during proposal/decision phase of adverse action process
  • Make sure that employee receives all materials relied on to propose action
  • Make sure that penalty choice is based on permissible factors
i nvestigating misconduct
Investigating Misconduct
  • If conduct may be criminal, refer matter to Office of Inspector General (OIG)
  • Where conduct is directly observed, no need to investigate but must have appropriate documentation to prove what happened
  • If investigation necessary, can be conducted by OIG, HR or Supervisor; Documenting evidence and findings is key
common attendance issues
Common Attendance Issues
  • Sick Leave Abuse
  • LWOP and AWOL Issues
  • Tardiness
sick leave
Sick Leave
  • Medical appointment
  • Incapacitation
  • Care for sick family member
  • Arranging for or attending the funeral of a family member
  • Adoption of a child
ways to deal with leave abuse
Ways to Deal with Leave Abuse:
  • Leave restriction letter
  • Deal with performance or conduct issues that flow from excessive absenteeism
evidence for sick leave approval
Evidence for Sick Leave Approval
  • Doctor’s/Medical Statement (can be required for less than 3-day absence)
  • Manager can question medical evidence if it looks suspicious
  • Manager must keep information in secure place
lwop and awol
LWOP and AWOL
  • LWOP is unpaid approvedleave, granted at the manager’s discretion.
  • AWOL is an unapprovedabsence that is disciplinary in nature.
  • Excessive AWOL or LWOP can lead to discipline.
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FMLA
  • 12 Administrative work weeks unpaid (or paid) leave for:
  • Serious health condition of employee
  • Serious health condition of the spouse, son, daughter, or parent of the employee
  • Birth of a son or daughter of the employee
  • Placement of a son or daughter with the employee for adoption or foster care
tardiness
Tardiness

* * *

Can be a leave/attendance issue if it is repeated and impacts the employee’s productivity

* * *

past practices
PAST PRACTICES
  • Refers to what agency has done in similar cases
  • If agency deviates from past practice, may lead to charges of disparate treatment
  • Past practices can be changed, but may need to give notice first
how to deal with defenses of past practice disparate treatment
How to Deal With Defenses of Past Practice & Disparate Treatment

Solutions:

  • Advance notice in writing
  • Deal with problems
  • Implement
  • Treat all the same
fitness for duty
Fitness For Duty
  • No longer a prerequisite for removals or agency initiated disability retirement
  • Can occur in response to employee-provided medical evidence and other limited circumstances, such as position with medical standards
insubordination and attitude problems
Insubordination and Attitude Problems
  • Can be the basis of disciplinary action.
  • Labels count because the agency must prove what it charges!
  • If propose a charge with an intent element, such as insubordination, agency must prove intent.
intent vs non intent misconduct charge
Intent vs. Non-Intent Misconduct Charge

Intent

  • Can Support a higher penalty

BUT

  • Requires more stringent proof to meet legal evidentiary burden, e.g., willfulness

Non-Intent

  • Less proof required

BUT

  • Generally, will support

a lower penalty than an intent misconduct charge

common types of misconduct
COMMON TYPES OF MISCONDUCT

Intent

Non-Intent

vs.

Falsification

Threats

Theft of

Government Property

Insubordination

Lack of Candor

Disruptive Behavior

Misuse of

Government property

Disrespectful Behavior/ Failure to Follow Instructions

it s not in my pd
It’s Not In my PD…

Not a valid basis for an employee to refuse to do work assignment

* * *

Tip:

Most PDs have a catch-all provision of “other duties as assigned.”

disruptive or disrespectful behavior
Disruptive or Disrespectful Behavior

Can be alternative to charge of insubordination or threats in the workplace

tools for penalty selection
Tools for Penalty Selection
  • Agency Table of Penalties
  • Agency Past Practices
  • Douglas Factors
table of penalties
Table of Penalties
  • Lists various offenses and ranges of penalties for first and subsequent offenses
  • Has built-in progressive discipline
  • Should be followed if one exists
  • No Table of Penalties allows more discretion in penalty selection, but it will be more strenuously reviewed
12 douglas factors
12 Douglas Factors
  • Nature and seriousness of offense
  • Employee’s job level and type of employment
  • Past disciplinary record
  • Past work record
  • Effect of offense on employee’s ability to perform at a satisfactory level
  • Consistency of penalty with penalties imposed on others
  • Consistency of penalty with table of penalties
  • Notoriety of offense
  • Clarity of notice or prior warnings
  • Potential for rehabilitation
  • Mitigating circumstances surrounding the offense
  • Adequacy and effectiveness of alternative sanctions
douglas factors
DOUGLAS FACTORS:
  • Require consideration of relevant mitigating and aggravating factors
  • Should be considered by proposing and deciding officials
  • Will be considered by MSPB
performance
PERFORMANCE

If used correctly, process can assist the manager in either improving performance or getting rid of non-performers.

Process is of utmost importance!!

myths of performance management
Myths of Performance Management
  • It is hard to fire someone for performance.
  • Firing someone for performance takes too much documentation.
  • Performance actions must be taken on track with the regular annual appraisal schedule.
  • Poor performers who have been “carried” can never be fired for performance.
substantial evidence
Substantial Evidence

The degree of evidence that a reasonable person might accept as adequate to support a conclusion, even though other reasonable persons might disagree.

o neal v dept of army contested performance standard
O’Neal v. Dept. of Army“Contested Performance Standard”

Written material is prepared [in accordance with] established stated objectives and is clearly written, succinct, and consistent with regulations and established policy. Little, if any, rewrite is required and necessary approval/concurrence of the finished product is easily obtained.

giving content to performance standards
Giving Content to Performance Standards

Inform the employee of specific work requirements through:

  • Written instructions
  • Information concerning deficiencies and methods of improving performance
  • Memoranda describing unacceptable performance
  • Responses to the employee’s questions concerning performance
pip must
PIP MUST
  • Include details about performance deficiencies and standards employee is required to meet during PIP.
  • Be long enough to allow meaningful opportunity for employee to improve.
pips practical exercise
PIPSPractical Exercise

A management analyst with a surly disposition also produces marginal reports. You place him on a 60-day PIP, and in the PIP letter you require bi-weekly meetings to review report writing quality. The first meeting ends in an argument. You do not hold further meetings.

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Questions

  • Was the PIP adequate?
  • Will the management analyst win at MSPB if you decide to remove him after you conclude he has failed the PIP?
it s all or nothing
It’s All or Nothing…

If agency follows procedures and employee’s performance doesn’t improve, removal will be upheld.

But…

If agency does not follow procedures and employee’s performance does not improve removal will be reversed.

special rules for removing an employee for unacceptable performance
Special Rules for Removing an Employee for Unacceptable Performance
  • Substantial evidence standard applies
  • Only MSPB consideration is evidence during the PIP
  • PIP must be reasonable in length, expectations, and assistance
  • Performance standard must be attainable
  • Douglas factors not relevant to performance cases; Non-stigmatizing (early out eligibility)
another myth
Another Myth

Agencies cannot use Chapter 75 adverse action process to deal with performance problems.

conduct vs performance actions
Conduct vs. Performance Actions
  • Performance judged by adherence to performance standards vs. conduct in the workplace
  • Conduct action can be taken on the basis of a one-time act
  • Judged by different evidentiary standards
use conduct for performance problems when
Use Conduct for Performance Problems When:
  • Some or all of poor performance is more than 1 year old
  • The evidence is strong
  • Performance problem is serious (i.e., life or property threatened)
  • Performance standard notice and other PIP requirements not met
use performance for conduct problem only when
Use Performance for Conduct Problem Only When:
  • Evidence is weak
  • All performance procedures (i.e., notice of standards and PIP) met
  • Misconduct shown by applying performance standard to unacceptable performance
managing effectively after complaint filed
Managing Effectively After Complaint Filed

The Efficiency of the Service is

NotPromoted

by bringing charges against employees who file EEO complaints or grievances or who blow the whistle

employee activity protected by law
Employee Activity Protected by Law

1. Opposing any act of employment discrimination or making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing on an employment discrimination claim. 42 U.S.C. § 2000e-3(a)

2. Disclosing information which the employee reasonably believes evidences:

  • violation of law, rule, or regulation, or
  • gross mismanagement, gross waste of funds, abuse of authority, substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)

3. Exercising any appeal, complaint , or grievance right granted by law, rule, or regulation. 5 U.S.C. § 2302(b)(9)(A)

4. Testifying for or assisting any individual in the exercise of a right referred to in Number 3. 5 U.S.C. § 2302(b)(9)(B)

5. Cooperating with or disclosing information to an IG or the Special Counsel. 5 U.S.C. § 2302(b)(9)(C)

6. Forming, joining, or assisting any labor organization, or refraining from any such activity. 5 U.S.C. § 7102

7. The right to individually or collectively petition Congress, or to furnish information to Congress, or to a committee member. 5 U.S.C. § 7211

elements of eeo reprisal claim
Elements of EEO Reprisal Claim
  • Engaging in protected EEO activity;
  • Knowledge of protected activity by management official (alleged retaliation);
  • Relationship shown between protected activity and challenged personnel action;

Or

  • Act by management official designed to deter exercise of protected rights.
whistleblower reprisal
WhistleblowerReprisal
  • Burden of Proof (corrective action): employee must show whistleblowing was a contributing factor in the personnel action at issue.
  • Defense (corrective action): agency can prevail by showing by clear and convincing evidence that the same actions would have been taken (or not taken) in the absence of whistleblowing.
whistleblowing is
Whistleblowing Is:

Disclosure of

a. Violation of law, rule or regulation;

b. Gross mismanagement;

c. Gross financial irregularity;

d. Abuse of authority; or

e. Specific threat to health or safety

nofear
NoFEAR

The Notification and

Federal Employee Antidiscrimination and

Retaliation Act

P.L. 107-174

accountability
Accountability
  • Agencies are to reimburse the Judgment Fund for the amounts of judgments, awards, and settlements in connection with a discrimination lawsuit.
  • Individuals are to be held accountable for their actions.
seven deadly sins
Seven Deadly Sins
  • Procrastinating
  • Engaging in disparate treatment/favoritism
  • Personalizing the problem
  • Retaliating
  • Acting impulsively and/or without supporting evidence
  • Failing to communicate
  • Failing to follow-through