May 2019 Newsletter

FELTG Newsletter Vol. XI, Issue 5 May 15, 2019

Petrified Wood, Antidotes to Chemical Weapons, and Other Cool Federal Things UPCOMING OPEN ENROLLMENT TRAINING SESSIONS One of the best parts about my job, besides all the wonderful people I MSPB Law Week get to meet, is all the cool places I June 3 – June 7 get to go. A couple of weeks ago, I Dallas, TX found myself in Petrified Forest National Park, training a group of Developing & Defending Discipline: supervisors on FELTG’s signature Holding Federal Employees Accountable class UnCivil Servant: Holding June 25 – June 27 Washington, DC Federal Employees Accountable for Performance and Conduct. After class one day, I put my The Civil Civil Servant: Protections, interagency pass to good use and toured the park. Performance and Conduct It was my first time there and I have to say – what July 10 an amazing place! If you haven’t been, you must go. Washington, DC The photo to the left is a snapshot I took of petrified Emerging Issues Week: The Federal wood that is over 200 million years old, from trees Workplace’s Most Challenging Situations that were likely standing when dinosaurs roamed July 15-19 the land that is now northeastern Arizona (which, Washington, DC coincidentally, used to be at the latitude of modern- day Costa Rica). Managing Federal Employee Accountability It’s always fun to get a tour of the federal agencies July 22-26 where I train. Whether it’s the National Weather Portland, OR Center in Norman, OK; a high-tech lab in Atlanta, Workplace Investigations Week GA where scientists are working to cure diseases; a August 5-9 hydroelectric generator in Grand Coulee, WA; a Denver, CO military hospital in North Carolina; or anywhere else in this great country, it’s such a privilege to see what Employee Relations Spotlight: Managing federal employees work on every day. Thanks for Attendance and Conduct letting FELTG be a part of it. Now it’s time for the August 21-22 May 2019 newsletter. We hope you enjoy. Boulder City, NV

MSPB Law Week Take care, September 9-13 Washington, DC Deborah J. Hopkins, FELTG President

They Don’t Call Me ‘Backwards Bill’ achieve the minimum level of for Nothing performance to avoid removal. By William Wiley Standards that only describe what an employee should not do, MSPB and Civil service law is a narrow the courts have found to be invalid field, we have to admit. A “backwards” standards. person could be the best litigator or Constitutional Wow. That advice is just breathtakingly lawyer in history, and still wrong. trip over some of the intricacies of the law that As we have taught at FELTG for many those of us in the FELTG years, we have to worry about a standard Nation are supposed to know. being impermissibly backwards if and only if we are dealing with a MINIMALLY Recently, I was reminded about one of the ACCEPTABLE, Level 2 standard that potential areas of misunderstanding in our doesn’t leave any room under it for Level 1 field. I had helped a supervisor draft a Unacceptable performance. Take a look at performance standard for a critical element the Minimally Successful standard in one of to place a poorly performing employee into the lead backwards-standard cases a performance Demonstration Period (aka (Jackson-Francis v. OGE, 103 MSPR 183 PIP), and it read something like this: (2006)): Two or more incidents of unacceptable performance during the • Critical Element: Develops demonstration period will constitute a courses for agency officials and Level 1, Unacceptable rating. employees This is an example of a classically easy to - Minimally Successful: prove performance standard. We make sure • Does not identify training that the employee knows what constitutes a needs of the targeted mistake under the problematic critical audiences. element, count mistakes as they are made • Fails to use principles of during the Demonstration Period, and then course design to develop voilà! He either passes or fails based on the performance-based number of maximum mistakes we tell him training. we will allow. MSPB has accepted this • Fails to develop training approach as valid for decades. designed to enable agency officials to After the employee failed to perform determine whether rule acceptably during the Demonstration Period violations occurred and by making too many mistakes, as is the employees to determine practice at the supervisor’s agency, she ran if they violated any of the the proposed removal memo through legal rule prohibitions. for review. Here is the advice she got from the general counsel’s office: If Jackson-Francis utterly fails to complete the tasks identified in this critical element, Legal Comment: The critical element using this standard, the agency would have will not be upheld by MSPB because it to rate her as Minimally Successful and sets forth a backwards performance cannot fire her EVEN THOUGH SHE standard in that it tells the employee FAILED TO DO ANYTHING! Obviously, the what not to do, rather than informs the agency intended for this to be the employee of what must be done to Unacceptable level of performance.

FELTG Newsletter Vol. XI, Issue 5 May 15, 2019

However, by mislabeling it as the Minimally Upcoming FELTG Webinars Successful level, the agency has misled the employee and cost itself a bunch of back Within Grade Increases: From Eligibility pay and attorney fees. to Denial to Appeals Barbara Haga I will concede that the Board chose an May 30, 2019 awkward phrase when labeling this type of Understanding and Working with Your problematic (and illegal) performance Agency’s OIG standard as “backwards.” It would have Jim Protin been clearer if it had simply said that a June 6 standard at the Minimal level is improper if it defines performance at the Unacceptable 50 Shades of Reprisal: Whistleblower, level. However, it did not choose the simpler EEO, Union & Veteran Reprisal Deborah Hopkins route, so we are stuck with having to June 13, 2019 understand this term in a more conceptual way. Significant Cases and Developments at the FLRA Folks, we have to know this stuff. It’s OK to Joe Schimansky July 18, 2019 not know it if it’s not your job, but it’s not OK to be the supposed go-to person for legal Employee Sexual Misconduct: Discipline advice and not know the case law. This little Early to Make Your Agency a Safer Place episode is a great example of being almost Deborah Hopkins too smart. June 27, 2019 Words Matter: Drafting Defensible The attorney-adviser knew a bit about Charges in Misconduct Cases Board law: that backwards standards are Deborah Hopkins illegal and they have something to do with July 11, 2019 telling an employee what not to do. Sex Discrimination, Gender Identity, However, he was missing a vital piece of and LGBTQ Protections deduction. in the Federal Workplace Meghan Droste It makes sense that a standard that September 5, 2019 describes only failure at the Minimally Why the Douglas Factors Are Your Successful level cannot be used to fire Friend someone, but it does not make sense that a Ann Boehm standard that describes failure at the September 12, 2019 Unacceptable level could not be used. Legal Suicidal Employees in the Federal advice that does not make sense practically Workplace: Your Actions Can Save a Life is almost always bad legal advice. Shana Palmieri September 26, 2019 Read the cases. Ask questions of Dealing with Unacceptable Performance: practitioners who know what they are doing. Fast and Effective Accountability Tools Come to the FELTG MSPB Law training for Agencies (held next in Dallas June 3-7). Deborah Hopkins October 3, 2019 If we don’t do a good job, not only do we let Discipline Alternatives: Thinking down the line managers who need us, but Outside the Adverse Action we also let down the citizens who rely on Ann Boehm government for services. And last time I October 24, 2019 looked, that’s just about everybody. [email protected]

FELTG Newsletter Vol. XI, Issue 5 May 15, 2019

The $505 Alternative to Filing a PFR 1295(a)(9); 5 USC 7703(b)(1)(A; 5 CFR § to the [Nonexistent] MSPB 1201.113. By Deborah Hopkins Typically, appellants file PFRs to the MSPB Everyone who reads this because it’s free, and filing in the Federal newsletter knows by now Circuit is not. Also, the PFRs from the Board that we don’t have a fully can then be appealed to the Federal Circuit functioning Merit Systems – so appellants who go the route of taking Protection Board (MSPB or the PFR directly to the Federal Circuit are Board). Each of the three losing an entire step of review. positions at the top of the agency, reserved for I can’t say I blame them, though; I wouldn’t political appointees, has been vacant for want to wait 3+ years to get a decision on a more than two months, but there have been PFR. Either way they go, MSPB or Federal no decisions issued at all for over 28 Circuit, appellants who file PFRs don’t have months because, from early January 2017 very much success in getting agency through the end of February 2019, there discipline overturned or mitigated. The was only one Board member – and one Federal Circuit’s scope of review in an member is not a quorum. No quorum = no appeal from the Board is limited by statute; MSPB decisions. it must affirm the Board’s decision unless the court finds the decision to be: Three nominees have been named; two “(1) arbitrary, capricious, an abuse have already cleared committee, and the of discretion, or otherwise not in final nominee needs to be voted on in accordance with law; (2) obtained committee. Then, if he passes muster, all without procedures required by three nominees will be brought to the law, rule, or regulation having been Senate floor for a confirmation vote. followed; or (3) unsupported by substantial evidence.” 5 USC § As it stands today, the administrative judges 7703(c); see Kahn v. Dep’t of (AJs) are still issuing initial decisions (IDs) Justice, 618 F.3d 1306, 1312 (Fed. based on agency actions. If either party Cir. 2010). does not like the outcome of an ID, the Under the substantial evidence typical process is for that party to file a standard, this court reverses the Petition for Review (PFR) with the three Board’s decision only “if it is not Board Members – a process that usually supported by ‘such relevant renders a decision within about six months evidence as a reasonable mind or so. But because at the Board level the might accept as adequate to MSPB is defunct, any PFR that is filed goes support a conclusion.’” Haebe v. into a pile on top of more than 2,100 other Dep’t of Justice, 288 F.3d 1288, PFRs, and there it sits for who-knows-how- 1298 (Fed. Cir. 2002) (quoting long. Talk about discouraging. Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)). There is a lesser-known alternative to filing Hairston v. VA, No. 2018-2053 (Fed. Cir. a PFR that it appears more appellants are Mar. 8, 2019). taking: filing PFRs directly with the Federal Circuit. After 35 days, if no PFR is filed with Here are some additional facts you may not the Board, the administrative judge’s ID know about the Federal Circuit: becomes the final Board decision, after • Last year, the Federal Circuit which parties have the right to file a PFR upheld agency decisions 92% of the directly with the Federal Circuit. 28 USC § time.

FELTG Newsletter Vol. XI, Issue 5 May 15, 2019

• It costs about $505 to file a PFR MSPB’s website show that only half the from an agency action in the usual number of PFRs are being filed at the Federal Circuit. MSPB. • If an agency wants to take a case to the Federal Circuit, it can’t file It doesn’t have to be this way – so I beg unilaterally; OPM has to give you, if you know someone on the Senate approval and then the Department Homeland Security and Government Affairs of Justice gets involved with the Committee, please ask them to vote quickly litigation. so we can get our MSPB back. Pretty • The largest percentage of cases the please. [email protected] court takes deals with patents. • The Federal Circuit may have a total of 12 active circuit judges Reasonable Accommodation sitting at any given time, and they in the Federal Workplace are required to reside within 50 Reasonable Accommodation is one miles of the District of Columbia. 28 of the most complicated areas of USC § 44. Judges on “senior federal employment law. Learn what status” are not subject to this you need to know in FELTG’s five- residency restriction. part webinar series on reasonable • The Federal Circuit website lists 18 accommodation: judges; only five are female. • In 2018, three of the judges sat by 1. Reasonable Accommodation: designation with other district or The Law, the Challenges & circuit courts, which is allowable Solutions (July 18) under 28 USC § 291. • Oral argument sessions are open to 2. Reasonable Accommodation: the public. If you’d like to attend, A Focus on Qualified oral arguments are normally held Individuals, Essential the first full week of each month. Functions, Undue You can find the oral argument Hardship (July 25) calendar for the year on the court’s 3. Telework as Reasonable website: Accommodation: When to Say http://cafc.uscourts.gov/argument/u “Yes” and When to Say pcoming-oral-arguments. “No” (August 1) • Total argument time (including 4. Hear it from a Judge: The rebuttal time) is limited to 15 Reasonable Accommodation minutes per side for panel hearings Mistakes Agencies and 30 minutes per side for en banc Make (August 8) hearings. • An attorney who wishes to be 5. Understanding Religious admitted to practice before the Accommodations: How Federal Circuit must fill out an They’re Different from application and pay a $231 Disability nonrefundable fee. Accommodation (August 15)

Expect to see more Federal Circuit action in Whether you are an attorney, EEO the coming months, as appellants are professional, HR specialist, or a starting to realize that they’ll have a supervisor, join us for this informative resolution much sooner if they skip the PFR series led by expert instructors. to the Board. In fact, recent statistics on the

FELTG Newsletter Vol. XI, Issue 5 May 15, 2019

The Good News: I’m an Optimist, Even work with to show others how to hire more When It Comes to Dismantling OPM effectively. Boy was I wrong. By Ann Boehm I wrote an email to the address on OPM’s I’m an optimist. I just website. Instead of getting some legitimate am. Perhaps that’s why guidance from OPM, the OPM contact I write a monthly forwarded my email to the Human column called “The Resources Director for the Agency and Good News.” Being indicated that I needed help. What OPM did optimistic does not not only failed to help me, but also always make me right embarrassed me with my Agency, just for about things, but trying to think outside the box. somehow, I feel better trying to see the bright side. How does this story apply to my optimism and the President’s intention to do away What does this mean in the federal with OPM? OPM is not helping Federal employment law world right now? It means agencies the way it could and should. I’m going to try to see the positive aspects Reform attempts continue to fail. Is possible of the President’s desire to abolish the that dismantling the agency will eliminate Office of Personnel Management. the inadequacies? I’m going to be hopeful.

I spent 26 years working for the Federal If there is no OPM, will agencies finally have government. I do remember a time, early in more autonomy in hiring Federal my career, when I would call OPM experts employees? Can KSAs become a thing of for advice and guidance. I remember being the past? Can restrictive job series very impressed with their knowledge and requirements disappear? In other words, the legitimate wisdom they imparted. I will can the Federal government move into the also tell you that in the latter of those 26 21st century? years, I was not finding the same to be true with OPM. According to the President’s plan, existing OPM employees and offices will be moved Don’t get me wrong. OPM still does many to the General Services Administration or things right, but it is failing greatly in the the Office of Management and Budget area of hiring federal employees. When I (background investigations are already on teach Federal managers how to handle their way to the Department of Defense). I problem employees, we always discuss that want to believe that if fresh eyes from other helping an employee improve can be vastly parts of government oversee OPM, the easier than trying to hire a new employee in destructive personnel folklore and the current morass of a system. unreasonably bureaucratic aspects of OPM’s mission will be questioned and I personally dealt with OPM on a hiring hopefully changed. It’s certainly possible matter right before I left the government. I that nothing will really change. And things was having difficulty filling an Employee could certainly get worse (the devil you Relations Specialist position. I went to know …). But the optimist in me believes OPM’s website to see if there was anything that maybe, just maybe, if leadership from there that could help me. I was drawn to outside of OPM examines its practices, new OPM’s hiring reform concept. I thought this ideas may actually move forward. was an initiative that would help creative managers bring in good people for jobs I told you. I’m an optimist. Here’s hoping!! without being stuck in bureaucracy. I [email protected] thought I could be that manager OPM would

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Amazon Versus the Sabbath: Religious accommodation. He explained that his Accommodations in the Workplace religious beliefs prevented him from working By Meghan Droste on his sabbath. The complainant’s supervisor informed him that the scheduling When I think of a post portion would not be an issue because office, there is one thing another employee volunteered to work on that definitely does not Sundays. However, the complainant was come to mind: a social required to receive the training on gathering spot (unless you processing Amazon deliveries so that he count standing in a long could serve as a backup. The Agency then line because you waited far scheduled the complainant for training on a too long to mail a holiday Sunday. The complainant did not attend the package). training. The Agency responded by scheduling the complainant for training on It turns out, however, that post offices use to the following two Sundays. The complainant be just that. Up until a combination of did not report on those days. The Agency religious groups and the labor movement then removed the complainant from his pushed to end Sunday mail delivery in the position, based on his failure to report on early 20th century, the post office was a the three Sundays as well as on two days Sunday gathering spot in many on which he used approved sick leave. communities, acting as a substitute for the taverns that were closed. That all ended in The complainant filed an EEO complaint 1921 when Congress declared that post regarding his removal and requested a Final offices would no longer be open for mail Agency Decision. In the FAD, the Agency delivery on Sundays. concluded that it accommodated the complainant because it did not schedule Other than helping out those of you who him to work on Sundays, and that the participate in trivia nights, why am I sharing scheduled trainings were required because this with you? Well, as you may have the complainant had to serve as a backup. noticed, the U.S. Postal Service is back in the business of delivering packages on The Commission reversed the Agency’s Sundays. USPS has a contract with decision and concluded that the Agency Amazon to deliver our books, clothes, and failed to accommodate the complainant. whatever else we might order from the Requiring the complainant to be available online retail giant seven days a week. This, as a backup on Sundays failed to of course, means someone has to work on accommodate his sincerely held religious Sundays to deliver all of things we order. beliefs. The Agency also failed to provide That brings us to the Commission’s recent any indication that not scheduling the decision in Stanton S. v. U.S. Postal Serv., complainant as a backup was an undue EEOC App. No. 0120172696 (Feb. 5, hardship because there was no indication 2019), involving a request not to work on that other employees were not available. Sundays as an accommodation. The Commission ordered the Agency to reinstate the complainant with back pay, The complainant in Stanton S. worked as a along with other remedies including training. PSE Sales and Services/Distribution Associate (PSE). The Agency required all The next time you receive a package PSEs to receive training and to make delivery on a Sunday, think about how much themselves available for Amazon-related fun we miss out on by not getting to hang deliveries. The complainant submitted a out at the post office and play cards like written request for an exemption from people did in 19th Century. working on Sundays as a religious [email protected]

FELTG Newsletter Vol. XI, Issue 5 May 15, 2019

Failure to Meet a Medical-related had performed his duties in an exemplary Condition of Employment manner in the past, the Army reasonably By Barbara Haga suspected that he had coronary artery disease and that he was, therefore, This month, we medically unfit for flying. The Board did not look at cases concur that Boulineau’s civil rights had been where the violated and noted that medical condition needed examinations of the type in question were to be met involves authorized by OPM. Boulineau v. Army, 57 some sort of MSPR 244 (1993). physical capability. Because the Boulineau alleged age discrimination and employees in that issue was ruled on by the EEOC in these cases had 1994. Per the EEOC’s analysis, the reason previously performed at a fully successful or for his removal was that he refused the better level or the medical showed that they heart catheterization procedure -- not his could perform at a fully successful level in age. Therefore, they did not find the future, one might think there could be an discrimination. Boulineau v. Dept of the issue in holding the employee to the Army, 1994 EEOPUB LEXIS 565. medical standard. However, the MSPB and Failure to meet new hearing qualification EEOC ruled otherwise in these situations. McAlexander was originally hired as a Medically unfit for flying Police Officer in January 2002 by the Boulineau was a 51-year old GS-12 Army Defense Protective Service (DPS). In Helicopter Flight Instructor. His position had response to the terrorist attack against the established medical standards. He was Pentagon on 9/11, DoD established the required to undergo annual flight Pentagon Force Protection Agency. The examinations. During an examination new agency absorbed the Pentagon's police conducted in 1989, it was discovered that force, formerly known as DPS, and its role he had an elevated coronary risk index. He of providing basic law enforcement and underwent additional testing, including a security for Pentagon and DoD interests in treadmill test and a fluoroscopy. The latter the National Capitol Region. test revealed a mild calcification of his coronary area. To confirm the existence of McAlexander had had no issues with coronary artery disease, which was qualifications prior to implementation of the disqualifying for the appellant's position, the new requirements. However, when he was Army asked that he undergo cardiac tested subsequent to issuance of the new catheterization. Boulineau refused to do so standards, he was found not qualified to and was removed consistent with the hold the Police Office position. According to relevant Army Regulation (AR) 40-501. the agency’s audiologist, McAlexander was "at risk for failure to recognize, discriminate, Boulineau argued that the testing and localize, and react appropriately to a variety evaluation program violated not only the of auditory stimuli." The audiologist also Army regulation, but his civil rights. The found that the appellant would have Board found that AR 40-501 provided that a "significant difficulty recognizing and person is medically unfit for flying if he has discriminating speech as well as other suspected or proven to have coronary artery auditory signals, particularly in the presence disease, and that a coronary risk index is of background noise," and stated further presumptive evidence of such disease until that he would be at a "greater than normal further evaluation is done as needed. The risk of being injured or of injuring others Board also found that although Boulineau because of background noises he had

FELTG Newsletter Vol. XI, Issue 5 May 15, 2019

missed or misunderstood in critical duties as long as he continued to take situations." The audiologist stated that there Depakote. were no hearing aids that could satisfactorily correct his hearing deficit. The agency medical officer found Justice disqualified for sea duty. He was removed, DoD proposed removal, but offered another and he appealed that removal to the Board. position. McAlexander was ultimately The agency medical officer testified that she reassigned to a non-law enforcement considered Bipolar Affective Disorder a position as a GS-07 Office Support disqualifying condition in itself under the Assistant, with retained pay, and the agency regulations, and that the continued removal notice was rescinded. The case use of Depakote was a separate was taken to arbitration where the agency’s disqualifying factor under the agency action was upheld. The arbitrator found that regulations. The agency medical officer the agency acted lawfully when it declined stated "Depakote is a medication that to waive its hearing requirement for requires some routine monitoring of blood McAlexander. The MSPB appeal was a levels to determine whether it's a request of a review of the arbitrator’s award therapeutic level" and also noted that and a claim that the reassignment was individuals taking psychotropic drugs are involuntary. The MSPB found that the disqualified from sea duty because of the agency's auditory acuity qualification uncertainty such drugs present in terms of standard was job-related and consistent their effect on individuals who take them or with business necessity and that who fail to take them, and because they McAlexander would pose a direct threat could have some "rather significant side because of his lack of hearing acuity. The effects pertaining to alertness and Board also ruled that acceptance of the judgment." The medical officer also testified offered reassignment was not involuntary. that the type of ships that Justice would be McAlexander v. DoD, 2007 MSPB 103. assigned to did not have the medical facilities to test the amounts of the drug in See also Holub v. Navy, PH-0752-03-0395- his system as would be required. She also I-1, which has the same result for another noted that in a situation where the individual Police Officer who failed to meet revised stopped complying with the medication, hearing acuity requirements. incidents requiring repatriation could occur again which could interrupt the mission of Failure to meet requirements for sea the ship, which could interrupt the mission duty because of prescribed medication of a battle group. The Board sustained the removal, although they overturned the Justice was a Utilityman in the civilian construction suspension for the period prior mariner pool with the Navy’s Military Sealift to his removal. Justice v. Navy, 89 MSPR Command. This position required going to 379 (2001). sea. Justice had previously experienced psychiatric and alcohol-related problems Next month we’ll look at cases involving while on board a vessel. As a result, he was security clearances and sensitivity repatriated back to the U.S. for treatment. determinations. [email protected]. He was diagnosed with Bipolar Affective Disorder. This condition was treatable with Learn from THE Expert medication. Justice provided information from two treating physicians stating that he Barbara Haga’s next Advanced was being successfully treated with Employee Relations class will be held Depakote, a psychotropic drug. It was also September 10-12, 2019 in Norfolk, VA. noted that he would have to take this drug Registration is open now. indefinitely, but he could resume his regular

FELTG Newsletter Vol. XI, Issue 5 May 15, 2019

Tips from the Other Side, May 2019 Producing the documents also means By Meghan Droste actually producing them. In the federal sector, it is generally insufficient to offer to I think it is fair to say that in a lot of ways, let the other side come to your location to discovery is the heavy lifting portion of inspect the documents. See EEOC litigation. It is time-consuming and usually Handbook for Administrative Judges, Ch. 4, involves a lot of different moving pieces. It § II(B) (“As a practical matter, parties may also include some literal heavy lifting typically provide copies of the requested as you sort through, organize, and produce documents in lieu of inspection.”). (Yes, I a significant number of documents. This have had an agency try to do this. No, it did installment of our discussion of discovery not go well for them on the motion to tips covers what to do (or not do) when compel.) responding to requests for production. The second tip is to ensure that you have The first, and perhaps most important, tip is an adequate privilege log if you withhold to actually produce documents and to do so any documents, or portions of documents, on time. I know that seems pretty obvious, pursuant to any privilege. If you redact or but, unfortunately, I have had to remind withhold anything, you have the burden of agencies of this very basic point more times proving that doing so is appropriate and than I can count. All parties have an necessary. See Apple Inc. v. Samsung obligation to timely respond to discovery. Elecs. Co., 306 F.R.D. 234, 237 (N.D. Cal. The failure to do so, including the failure to 2015) (“The party asserting the privilege produce responsive documents by the bears the burden of establishing all deadline, can result in a waiver of any necessary elements.”). Your privilege log objections to the requests. See Cardenas should state the privilege you are asserting, v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, identify each document or portion of a 619 (D. Kan. 2005). If you are unable to document that you are withholding, identify produce the documents by the deadline to the individuals who created or sent and respond to discovery, you must identify a received the document if it is an email, and specific date by which you will produce provide a description of the information you them. (You should also check in with the are withholding. Failing to produce a other side and request their consent to privilege log, or producing an insufficient informally extend the deadline or to file a one may result in the judge finding that the motion to extend it if needed.) Simply telling agency waived all asserted privileges. See the complainant that you will produce the McNabb v. City of Overland Park, No. 12- documents when possible is not enough, CV-2331, 2014 WL 1152958, at *6 (D. Kan. and may be considered a failure to respond. Mar. 21, 2014). Finally, if you are redacting, See Jayne H. Lee, Inc. v. Flagstaff Indus. avoid the mistakes Paul Manafort’s Corp., 173 F.R.D. 651, 656 (D. Md. 1997) attorneys made, and make sure the text is (“[A] response to a request for production of actually redacted. [email protected] documents which merely promises to produce the requested documents at some Emerging Issues Week in DC unidentified time in the future, without offering a specific time, place and manner, Navigating the modern federal workplace is not a complete answer as required by requires both legal knowledge and the Rule 34(b) [of the Federal Rules of Civil practical skills to handle the most intense Procedure] and, therefore, pursuant to Rule and challenging situations. Join us July 37(a)(3) is treated as a failure to answer or 15-19, 2019. Register now. respond.”).

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God Bless America and Charges supporters was that “Why the Darkies Were that Avoid Intent Born” wasn’t racist, but satirical. In other By Dan Gephart words, they argued, we didn’t understand Smith’s intent when she sang that song; she The Phillies were hitting was making fun of racism. the stuffing out of the ball, the Sixers were Personally, I applauded the difficult engaged in a physical decisions made by the Yankees and the playoff series with the Flyers. That said, there was something Brooklyn Nets, and the about the sports radio argument that struck Eagles were preparing a nerve. A decade-plus of hearing experts for the NFL Draft. So like William Wiley, Deborah Hopkins, and when I turned on a Barbara Haga teach disciplinary charges Philadelphia sports radio station last month, will make you wince when you hear an I was shocked to hear fans talking about, argument about intent. um … Kate Smith. If you’ve attended any FELTG training, The Songbird of the South was once a good whether as a federal HR professional, luck charm for the Philadelphia Flyers attorney, or supervisor, you know that it’s hockey team. When Kate Smith sang “God awfully hard to prove intent. Your decision Bless America” before games, the Flyers to remove, suspend, or demote an more likely than not won, especially during employee could be the right one. However, their back-to-back Stanley Cup seasons in using an intent-driven charge will unravel the mid-1970s. Her final public performance your case faster than Anthony Scaramucci’s was actually before a Flyers game -- Game tenure as White House Director of 2 of the 1985 Stanley Cup finals to be exact. Communications. Smith was so beloved that the Flyers organization built a statue of her outside The MSPB, in Boo v. Department of their arena. Homeland Security, made it clear: Whether intent has been proven must be resolved by Kate Smith’s iconic mid-song figure was a considering the totality of the fixture in South Philly for years, until the circumstances, including the appellant’s Flyers suddenly covered the statue last plausible explanation, if there is one. month. Days later, it was gone. The Basically, if the employee has a decent organization had “discovered” the racist excuse, your charge is sunk. lyrics to other tunes in the singer’s canon, songs like “Pickaninny Heaven” and the Here are a few charges to avoid with case 1931 hit “That’s Why the Darkies Were examples: Born.” (It was actually the New York Yankees who first cut their connection to the Falsification: The MSPB found that the deceased singer a day before the Flyers, Richard Leatherbury, an assistant announcing they would no longer play operations manager, improperly submitted a Smith’s version of “God Bless America” claim for past overtime based entirely on an during the seventh inning stretch.) estimate, and that improperly indicated that the claim was based on a precise Irate sports fans were shocked, and they calculation of actual time worked. The board called into sports radio stations en masse to upheld the agency’s removal. share their displeasure with the Flyers’ decision. There were several arguments However, the Federal Circuit found that the against removal of the Smith statue, but the employee’s good faith explanation in filing one that took sway over most Smith the travel expenses was disregarded. A

FELTG Newsletter Vol. XI, Issue 5 May 15, 2019

reasonable good faith belief in the truth of a FELTG Case and Program statement precludes a finding that the Consultation Services employee acted with deceptive intent. Leatherbury v. Army, 524 F.3d 1293 (Fed. Sometimes, you need an outside Cir. 2008). perspective when handling a difficult federal workplace situation. Whether it’s Insubordination: The agency claimed that been a while since you’ve taken a registered nurse Irene Yetman’s failure to misconduct action, you have a tricky complete her work was evidence of performance case with a high-ranking insubordination. The administrative judge employee, you need help negotiating rejected these charges. Yetman’s intent was your next union contract, or there’s a not to disobey orders. The orders were so challenging EEO complaint pending, it onerous, she didn’t have time to complete can be beneficial to get assistance from them all. Yetman v. Department of the someone who’s handled these types of Army, 88 FMSR 5138 (MSPB 1988). legal challenges before.

Theft: Cathryn Nazelrod, a correctional That’s where FELTG comes in. institute employee, admitted that she took $10 from an inmate’s envelope to buy We’re not just a training company. We herself lunch. Nazelrod put the $10 back have a team of specialists with decades into the inmate’s envelope the very next of experience who can help you tackle day. When the agency found out, it demoted even the trickiest federal workplace Nazelrod on the charge of theft. Noting that legal challenges. Take a look at some of the one of the elements of criminal theft was the projects we’ve been working with an intent to permanently deprive the owner agencies on recently: of possession or use of the property, the - Drafting and reviewing documents MSPB concluded that the agency failed to and evidence for discipline and prove the requisite intent because she performance cases returned the money. On appeal, the Federal - Preparing for litigation before the Circuit agreed. King v. Nazelrod, 43 F.3d MSPB and EEOC 663, 665-67 (Fed. Cir. 1994). - Editing agency policy on performance and conduct Taking a page out of the best-selling Eat expectations and procedures This, Not That book, I share with you - Drafting performance plans and Charge This, Not That. writing standards to comply with OMB Directive M-17-22 • Charge Lack of Candor, not - Preparing negotiators for Falsification bargaining with unions • Charge Failure to Follow Orders, not - Developing administrative Insubordination investigation plans • Charge Unauthorized Removal, not - Defending against nonmeritorious Theft harassment complaints - Negotiating settlement agreements While I understand the Flyers’ decision to - And more! remove a statue of an artist whose successful career included racist songs, and If you have a case and think we can I have made that case in the court of public help, you can reach us opinion, I would not want to argue it before at [email protected] or 844-283-3584. the MSPB. [email protected]