FELTG Newsletter Vol. IX, Issue 3 March 15, 2017 WEBINARS on the DOCKET

FELTG Newsletter Vol. IX, Issue 3 March 15, 2017

Maybe Our System Really Is Broken these lyrics might be a good mood setter. Also, If you want the details, you’ll Holding On might be a good approach to take for need to read the decisions. all civil servants for the next couple of years. However, to a lay person trying to understand our civil service However, here at FELTG, we’re sticking with the oversight system (and I include Macarena view of life: “Dale a tu cuerpo alegria … our leaders in Congress in this grouping), these are the only Hey, Macarena!” facts that matter and that make our civil service protection system appear to be bollocks: COMING UP IN WASHINGTON, DC

1. In 1996 (Billboard Number One Song of Absence & Medical Issues Week the Year: Macarena), MSPB held that the March 27-31 appellant had probably been constructively suspended relative to absences from work Workplace Investigations Week that commenced in 1990 (Billboard April 24-28 Number One Song of the Year: Hold On). 2. In December 2016, in its “Final” Order in this case, 26 years after things started, Legal Writing Week MSPB ordered the Postal Service to pay June 5-9 the appellant’s attorney $100,734 in legal fees and costs. As part of its adjudication of attorney fees in this case, MSPB had to JOIN FELTG IN DENVER decide whether 0.3 hours sending a fax was professional legal work or simply Managing Federal Employee clerical work, among other high level Accountability Schultz v. USPS decisions, , PH-0752-94- May 8-12 0233-M-1 (2016)(NP).

Whether you fiercely love the civil service as we do WEBINARS ON THE DOCKET here at FELTG or loathe the civil service as some of our elected officials seem to do, you have to admit that there’s something wrong with this Suspected Bad Behavior: Performing a process. Legally-Sufficient Misconduct Investigation

March 23 Hold On In , Wilson Phillips sings, “I know there's pain. Why do you lock yourself up in these Significant Federal Sector Developments chains?” For those planning our new civil service, April 6

Case Law Update: When Is an Employee Efficiency Battery examination (PEB) that was “Regarded As” Disabled Post-ADAAA? required in order to attend the Federal Law By Deryn Sumner Enforcement Training Center in Glynco, Georgia. That one part? The sit-and-reach The Americans With portion. Disabilities Act Amendments Act (ADAAA) It was recommended that he be allowed to became effective on work out three times a week under the January 1, 2009 and did not agency’s policy allowing certain employees to apply to cases arising prior use work hours for exercise and try the test to that date. The internet again in a few weeks. His requests were tells me that in 2009, we denied and after he informed his chain of were aghast at Balloon command about his concerns about meeting Boy’s parents for tricking us the sit-and-reach requirements and requested into thinking a boy was floating away in a giant a waiver, he received notification that the balloon, wondering how Tareq and Michaele agency was going to terminate him from the Salahi managed to sneak into a White House job. Notably, during a meeting to discuss the State Dinner, and applauding Captain “Sully” issue prior to his termination, the complainant’s Sullenberger for safely landing a plane on the supervisor told him that he was “highly Hudson River. disappointed” that complainant did not reveal his “disability” during his interview for the job. So, yeah, it’s been a long time since the ADAAA was enacted, but we are now finally The complainant filed an EEO complaint (after seeing substantive decisions applying it from of a brief sojourn to the MSPB where his appeal the EEOC’s Office of Federal Operations. A was dismissed for lack of standing as he was a notable recent decision is Elden R. v. probationary employee) and alleged that the Department of Interior, EEOC Appeal No. agency unlawfully perceived him as an 0120122672 (February 24, 2017). The individual with a disability when it terminated Commission addressed an appeal the him. Citing legislative history, the Commission complainant filed on June 11, 2012 (while the agreed and took this opportunity to provide a rest of us were readying for the 2012 Summer nice summary of the Congressional intent Olympics in London, remember those?) and behind the expansion of coverage in the found that his termination in January 2011 was ADAAA: “[T]he ADA Amendments Act discriminatory because the agency “regarded broadened the application of the ‘regarded as’ him” as having a disability. prong of the definition of disability. In doing so, Congress rejected court decisions that had The agency selected the complainant for a GS- required an individual to establish that a 05 Wildlife Refuge Specialist position, which covered entity perceived him or her to have an required him to work collateral law enforcement impairment that substantially limited a major duties. While serving in the military, the life activity. This provision is designed to complainant suffered neck and back injuries restore Congress's intent to allow individuals to which prevented him from being able to sit on establish coverage under the ‘regarded as’ the floor with his legs straight in front of him prong by showing that they were treated and reach his fingers beyond his toes. He adversely because of an impairment, without passed his initial physical examination and the having to establish the covered entity's beliefs physician concluded he could perform the concerning the severity of the impairment” duties of the job. However, he wasn’t able to (internal citations omitted). successfully complete one part of the Physical

As for Elden, the Commission found that he By Barbara Haga met all of the qualifications for the position except the requirement to “sit and reach,” and This month I am continuing as such, he was qualified to hold the position. the discussion regarding The Commission then turned to whether or not whether performance there was a job-related and consistent with recognition is a productive business necessity reason for Elden to be able part of the performance to sit and reach, and found nothing in the management process. record about how being able to reach over one’s toes with legs outstretched related to any Grievances and job function of a Wildlife Refuge Specialist. Reconsideration Requests Noting that the agency had provided waivers to the “sit and reach” requirement for other For some agencies, it seems that the design of individuals in substantially similar positions, the appraisal systems, including in some cases the Commission found the termination was tying of awards to appraisals, is all about discriminatory and awarded relief, including avoiding grievances. It’s not whether it’s a reinstatement and back pay from his good program, or accomplishes the goals of termination more than six years prior. performance management, or meets the need [email protected] for feedback, it’s whether all of the guesswork has been eliminated so that the appraisals can [Editor’s Note: It’s decisions like this that be defended if there are challenges. on occasion make me think I am just not Grievances and requests for reconsideration smart enough to understand how EEOC can be a huge drain on agency resources, so approaches legal analysis. The Americans trying to avoid them is a reasonable response. with Disabilities Act defines “disability” as “a physical or mental impairment that Grievances can run the gamut, from a substantially limits one or more major life challenge to one employee’s summary rating to activities.” Therefore, in my limited brain an institutional grievance filed by the union capacity, to be found to “regard” someone about the entire rating system. Depending on with a disability, it would seem that we need what your appraisal program and/or grievance to find an agency action based on a system allows, there could be a grievance “limitation on a major life activity.” The about an individual element rating in an agency here acted based on this employee’s appraisal, even though it wouldn’t individual’s inability to sit on the floor with change the overall rating. Unless the matter is legs outstretched, and then reach with his excluded, comments written in an appraisal fingers beyond the tips of his toes. If that may also be grievable. Add in pay-for- action is a “major life activity” for any of performance and the ante goes way up and is you readers out there, you are living a likely to increase the number of grievances, much more exciting life than am I. The fact because now paychecks and ultimately that an uninformed layperson calls a annuities are at issue. If you tie awards medical limitation a “disability” does not directly to the level of appraisal (i.e., everyone make it a “disability” under law. I’m just rated Level 4 or 5 gets an award but not those saying … rated Level 3), then you are likely to generate – Wiley] grievances because employees want a share of the pie. The number of places where something could go wrong is mind-boggling. Performance Recognition – Worth the Costs? An Illegal Appraisal System

older workers who were affected by the Let’s take a look at a grievance about discrimination. appraisals that had far reaching and also costly impact. You can read about it at In addition to the settlement to correct the past http://www.govexec.com/oversight/2007/09/arb discrimination, the SEC and NTEU came to an itrator-rules-against-sec-pay-for-performance- agreement about new performance criteria that system/25249/#.WKhpAb8NM3k.email and they designed together. The new system was http://www.govexec.com/pay- based on private sector benchmarks, a review benefits/2008/10/sec-union-settle-pay-for- of each job to determine the measures that fit performance- each one, and training for managers. [Note: I case/27829/#.WKho5xF4C2Y.email The thought the content of performance appraisals Securities and Exchange Commission (SEC) was not subject to negotiation, but then I get implemented a pay-for-performance system in confused some times. It happens when you 2003. The system had 15 pay levels, with up are old enough to remember what the huge to 31 steps in each level. An employee with an issues were when the Civil Service Reform Act Outstanding rating could move up three steps of 1978 was initially implemented. See in a year, resulting in a 4.5% salary hike. In National Treasury Employees Union and impasse negotiations, the Federal Service Department of the Treasury, Bureau of the Impasses Panel allowed SEC to implement Public Debt, 3 FLRA No. 119 (1980) for because the Panel found that the system starters.] “reflects a pay structure that was well- researched, based on best practices from other Anyway, negotiable or not, the agency and the agencies, meets the agency’s needs, and is union agreed on specific performance comparable to those of other financial measures. I am reading that to mean that the regulatory agencies.” So, how did this well- measures took out some of the subjectivity and designed system fall apart? Apparently, the replaced it with more objective measures. It’s performance requirements were not specific to common that unions want that. They generally the jobs that employees performed. According like to see a system that limits the amount of to NTEU, who represented the effected discretion that the manager has – and employees, the measures of performance were objective measures do that. not specific to the jobs performed by the employees and thus employees had little way Creating Measures that Remove to know what the supervisors or the review Subjectivity board that gave the increases was looking for. My union friends are probably not going to like That was just part of the problem. The union this part of the column. (And, yes, I do have pointed out that these not-so-clear some union friends). While I understand what performance requirements had an adverse their interests are, I am concerned about what I impact on African-American employees and consider a watering down of performance employees 40 or older, who were statistically measures. In organizations where unions tried rated lower than their counterparts. The matter to limit the judgment being applied and the was taken to arbitration. Apparently, the discretion that the supervisor had to assess the agency was not able to substantiate that the work and replaced that with more “objective” ratings were legitimate, and the arbitrator ruled measures (like SMART measures), the agency in 2007 that the system was illegal because it gave up assessing the higher level skills. was discriminatory. The end result was an award of $2.7 million that was to be divided What does that look like? Instead of among the African-American employees and measuring by things like “applies appropriate

Copyright © 2017 FELTG, LLC. All rights reserved. 4 FELTG Newsletter Vol. IX, Issue 3 March 15, 2017 techniques within accepted guidelines in dealing with complex situations, employs technical knowledge and strong skills in How Should You Document Misconduct? persuasion to convince recipients of By Deborah Hopkins reviews/audits of the need for changes to obtain their commitment to make changes, or In response to last applies judgment in interpreting guidelines and month’s article about letters of counseling

doing more harm than JOIN FELTG IN PHILADELPHIA Advanced Employee Relations good (Another Reason to May 9-11 do Away with letters of Counseling), I received Focusing on employee leave, performance, the below letter. Since and conduct, this seminar is a must-attend for this covers questions a federal ER professionals. number of you have, I figured this Newsletter was a good place to Registration is open now. post and reply. advances reasonable alternatives to meet Hello, goals of the program” the measures become more like “completes 90% of audits on time I read with interest the article you wrote and without the need for significant technical that warns that supervisors may be changes. Three or fewer minor errors in an better off not putting letters of audit report are considered acceptable. Any counseling in an employee’s file. I am delays in meeting assigned deadlines must be an Administrative Officer and assist our approved in advance by the supervisor.” managers with labor/employee relations issues. I frequently advise managers to Why would an organization want to measure start with counseling memos to try and by objective standards? It makes it easier to address unacceptable performance and defend the ratings, as apparently the SEC was misconduct. However, we have noticed unable to do. And, when the awards are linked a trend where our union is filing to the rating level without any independent grievances and taking these cases to recommendation whether an award is arbitration alleging they are discipline warranted, then more grief of explaining why when they are not. Fortunately, we’ve one received an award and another didn’t is settled at mediation before an arbitration eliminated. But, do awards in such systems hearing. Your article cautions that EEO really motivate people to do more and do cases are now being built on the better? I don’t think so. What I have seen is issuance of counseling memos. This is that it just becomes some extra dollars tied to very frustrating for managers trying to the appraisal. In the days when I started my get their employees to do the right thing. career, performance awards were handed out in ceremonies in front of coworkers. Now, in What would you suggest a manager some organizations you just get your copy of should do to build documentation to the SF-50 with no fanfare – and sometimes support an actual disciplinary action if you are given that SF-50 in the closet and they are not to issue counseling memos sworn to secrecy in case anyone asks what to an employee? Would you suggest you got. We have come a long way, Baby, but that they simply have a verbal I think we went the wrong way. counseling and the manager write a [email protected] Copyright © 2017 FELTG, LLC. All rights reserved. 5 FELTG Newsletter Vol. IX, Issue 3 March 15, 2017

Memo to the file to record this Let’s hash this out a little more. discussion? Would it be okay for a manager to send an email message to In some cases, “counseling" an employee the employee summarizing the might help. For employees who just need a conversation? little coaching or guidance, a talking-to is often all they need to get better. If so, great - these Just wondering what a manager can do. are not the employees who are going to file a If they don’t have a way to prove the grievance or an EEO complaint. But a problem employee was put on notice of their arises when the counseling gets memorialized unacceptable conduct before taking into an official letter or document that goes into disciplinary action, it will be more difficult the OPF; as you’ve mentioned, employees to prevail when actual discipline was grieve these (or file EEO complaints) and it’s issued. terribly inefficient because these documents serve no necessary purpose in progressive Any guidance would be greatly discipline. appreciated. Thank you! We don’t have exact statistics, but from our Dear FELTG Reader, FELTG experience we see that employees are far less likely to grieve a verbal counseling Thanks for the note. session than they are a written memorandum. Personally, I think there’s something about the Let me start by clarifying that there are different tangible letter going into an actual file that gets procedures for performance and misconduct. them riled up or scared or upset. Could an employee grieve a verbal meeting; sure, In performance situations, the employee has to probably, but it’s not as tangible as a letter that be given a performance plan. There’s no says, “You were bad.” It’s inefficient, because requirement to document unacceptable these letters lead to things like mediation and performance prior to placing the employee on a arbitration but they can’t be used as the basis PIP. Therefore, you issue the plan, wait until for progressive discipline. Can they be used to you conclude that the employee is performing go to notice? Sure. But hang with me; we have unacceptably, then initiate the PIP. No prior a more efficient method we recommend to warnings or counseling are required here. If the managers who are dealing with misconduct. employee fails the PIP, you can propose removal. Easy peasy. Here it is:

Let’s move over to conduct now. In misconduct Step 1 - If there is a question about notice, the situations, the employee has to be on notice of supervisor should talk to the employee to put the rule; he does not have to be warned that he him on notice of the rule. Send the employee has broken the rule. As long as the employee an email after the talk, recapping the knows the rule, prior written warnings are not conversation. This helps provide necessary to discipline. Lehnerd v. OPM, 55 documentation of notice without it being a MSPR 170 (1992). To tell an employee the formal memo put in an OPF. Remember, rule, email works best. There doesn’t need to memos or counseling letters don’t count toward be a warning that they’ve engaged in progressive discipline. In addition, the misconduct in the past because that triggers supervisor should take hand-written notes optimism bias and a possible EEO complaint in about the discussion she had with the which the employee tries to defend herself. employee, and should also make notes about the employee’s conduct following the

Copyright © 2017 FELTG, LLC. All rights reserved. 6 FELTG Newsletter Vol. IX, Issue 3 March 15, 2017 discussion. (We suggest keeping a separate weight in progressive discipline. If you have an notebook for each employee, so if a case goes employee who has potential to get better, a to discovery only notes relevant to this reprimand will work just as well as (if not better particular employee get submitted to the than) a counseling memo. And as a bonus, if record.) the employee doesn’t get better, we’ve already taken care of a step in progressive discipline Note: this step is not necessary if the by issuing a reprimand, and can move on to a short suspension next. Can they grieve it? Sure. But they can grieve a counseling memo FELTG is Coming to Denver too, and that doesn't count as discipline. So, it saves time and effort to go directly to a Managing Federal Employee reprimand. It’s as efficient as we can be, given Accountability the nature of our business. May 8-12 So, depending on notice, here’s the Discipline It was a hit last year in New Orleans, Three-Step: Honolulu, and San Francisco. So now we’re bringing this exciting program to the Step 2 - Reprimand Mile-High City! Step 3 - Short suspension Covering a range of topics, this week for supervisors and advisers will give Step 4 - Removal participants the tools they need to handle employees with performance and conduct I know this can be frustrating; you have issues, leave abuse, frivolous EEO colleagues across the government who write complaints, communication issues, and letters to us about this very thing, every week. union considerations. I hope this helps. Keep the faith, and good Registration is open now. Won’t you join luck! us? [email protected] supervisor can show the employee was already on notice of the rule before they broke the rule. For example, if the employee attended Filing with the EEOC’s Office of Federal a training session about a work process and Operations: An Appealing Proposition? there is proof the employee attended (a sign-in By Deryn Sumner sheet, for example), and the employee’s misconduct is tied to something about the work Over the many months I’ve contributed to this process he learned in that training session, fine publication, I’ve discussed a lot of then the sign-in sheet provides documentation decisions issued by the EEOC’s Office of that the employee was on notice. In other Federal Operations, but not a lot about the words, employees don’t get free warnings process of filing an appeal with the Office of about every act of misconduct if they already Federal Operations. So let’s dive in, shall we? knew what the rule was. Complainants can file appeals of agency If there was sufficient notice, we recommend decisions to dismiss their formal complaints, so skipping the counseling memo and going long as all of the claims in the formal complaint directly to a reprimand. Reprimands hold are dismissed. If not, then the agency Copyright © 2017 FELTG, LLC. All rights reserved. 7 FELTG Newsletter Vol. IX, Issue 3 March 15, 2017 investigates the remaining claims and the request for reconsideration and re-open the complainant can challenge the dismissal of the decision on its own to correct the mistake (it dismissed claims by filing a comment on partial has happened to me and is an amusing, but dismissal before the administrative judge once ultimately favorable, result). the investigation is completed. Complainants can also file appeals: Timeframes for how long it takes to get a decision from the Office of Federal Operations • From final agency decisions issued on vary. Looking at 2016 decisions, some the merits of their cases, decisions on procedural dismissals were • From final actions issued by agencies issued only about 4-5 months after being filed. affirming unfavorable decisions from However, more substantive cases can take longer. In the Elden R. v. Department of administrative judges, Interior case I discuss elsewhere in this • On decisions for relief including petitions month’s newsletter, it took 4.5 years to get a for attorneys’ fees and awards of decision on the merits. [email protected] compensatory damages and other remedies, and • On allegations of breaches of settlement When to Give a Probationer Due Process agreements. Prior to Termination By William Wiley Agencies are required to file appeals to EEOC’s Office of Federal Operations Questions, we get questions. whenever they issue final actions which fail to And sometimes it takes us a fully adopt the administrative judge’s decision, couple of responses to flesh under 29 C.F.R. 1614.110(a). Agencies can things out. From an inquisitive also challenge findings from administrative (and patient) FELTG-ite: judges regarding liability and/or remedies. Dear FELTG Brilliant Minds- Each party gets 30 days to notice the appeal and 30 days from that date to file a brief in I have a hypothetical support of the appeal. Agencies are required question. If you have a probationary to provide a complete copy of the complaint. employee with full appeal rights that is Failure to do so can lead to sanctions, up to not performing at a satisfactory level; and including default judgment. the manager does not want to put the If the Office of Federal Operations does not employee on performance assistance rule in your side’s favor, you can file a request because s/he is a probationary for reconsideration of the decision. The employee; but the manager wants to standard, set out in 29 C.F.R. 1614.405(c), remove the employee, what is the requires a showing that the Commission’s charge? Failure to successfully decision had a clearly erroneous interpretation complete a probationary period? If so, of material fact, a clearly erroneous would the specifications be examples of interpretation of material law, or will have “a his/her poor performance? How would substantial impact on the policies, practices, or you proceed? operations of the agency.” The Commission ruled on more than 600 of these requests in And here’s our “brilliant” (though incomplete) 2016 alone and very rarely will grant a request first response: for reconsideration. In some instances, the Commission will realize that it erroneously Thanks for your email. With relied upon wrong law or fact but will deny the probationers, there is no charge. We Copyright © 2017 FELTG, LLC. All rights reserved. 8 FELTG Newsletter Vol. IX, Issue 3 March 15, 2017

just tell them that today is their last day of employment and hand them an SF-50 However you do it, here is what I documenting their removal. ABSOLUTELY ALWAYS have the supervisor do: draft a memo for the Although this is the minimum legal record that describes whatever it is the approach, here are options I’ve used employee has done that warrants over the years. They are all equally safe removal: dates, specific failures, from a legal standpoint. The choice witnesses. Stick that in the file (don’t really is a personal one depending in give it to the employee) and use it large part on your philosophy of life: defensively if/when the employee files an EEO complaint. 1. Notify him today that he’s being separated at the end of the pay period. Send him home and he gets paid until And then, our questioner’s response: the end. 2. Along with the SF-50, give him a That’s just great. Thanks so much. memo from the supervisor that says That’s a very good way to terminate a something benign such as “Effective probationer in most situations and I’ll today, I am separating you from make sure that we implement that employment during your probationary approach office-wide. However, did you period. You have failed to demonstrate get the part of my question that says the qualifications and characteristics THE EMPLOYEE HAS FULL RIGHTS necessary for an employee of the to the Board? She has completed more Environmental Protection Agency.” than a year of current continuous 3. Have the supervisor talk with him, service without a break from another perhaps along with an HR specialist and position within the agency. tell him that he has not successfully performed as a probationer and that you Oops, we sort of missed that in our haste to intend to separate him at the end of the respond promptly. Thank goodness that our week. Then, tell him that if he would reader did not give up on us. prefer to resign now, the separation will be reflected as a voluntary resignation Then, we’re into a notice letter, a rather than as a termination during response, and a decision. In the notice probation. Some employees see this as letter, I would charge the incidents of a “clean record” resolution although as a poor performance that have occurred practical matter, it might not be as clean that cause the supervisor to decide to as he would like. terminate the individual. Something like this: Personally, I like No. 3 if the employee is otherwise a good person. I try to use By this memo, I am proposing that you the tone, It’s not you; it’s me: “Hey, this be terminated during probation based didn’t work out in this particular job. But on the following incidents: we sometimes have other jobs open up here at EPA that might be a better fit. I Charge: Deficient Performance hope you apply for them and are successful in some other type of work, Specification A: On February 21, 2017, especially if you get a little more you painted the walls in your office navy education or experience in the field.”

blue. I had told you previously to paint Best of luck out there. [email protected] the walls white.

Specification B: On February 17, 2017, you turned in your work for the week Official Time: What’s Considered and it contained 18 widgets. On Reasonable? February 13, I had told you that you By Deryn Sumner needed to produce 20 widgets that week. Under the EEOC’s regulations at 29 C.F.R. 1614.605(b), complainants who are employees Specification C: On February 10, you of the agency are allowed “a reasonable turned in a Survey Report that had ten amount of official time” while on duty hours to misspelled words, three incorrect do tasks relating to their EEO complaints. This mathematical calculations, and used 10 includes time to prepare the formal complaint, point font even though our standard respond to requests for affidavits from EEO operating procedure for survey reports investigators, and respond to Interrogatories, calls for 12 point font. See attached Document Requests, and Requests for exhibit A. Admissions during discovery once the case is in the hearing stage. Any time spent by the And on and on. Then, you’ll need to do complainant as required by the administrative a brief Douglas analysis justifying judge or the agency representative is typically termination, and you’re done at that considered inherently reasonable. This time step. includes attending fact-finding investigations and interviews with EEO investigators, Seven days to respond, an impartial mediations, settlement conferences, decision, and they are off the payroll in prehearing conferences and other prehearing 31 days. Please note that the law proceedings, and the hearing itself. changed in December and you can now place an employee who has received a proposed termination on Notice Leave, NEW webinar series thereby getting the employee out of the workplace during the notice period Absence Due to Illness without having to place him on admin • April 13 leave. • April 27 • June 1 FLRA has had no cases on this, but I’d bet money that they’d find the union has This three-part series answers your a right to be involved here even though questions about employees who are the case law says that they don’t have absent from the workplace – short and jurisdiction over a probationary removal. long term – due to illness. From a cold that That’s because this whole mess is requires an employee to go home a few based on a darned typo in the law that minutes early, to FMLA entitlement has created this odd-ball category of exhaustion for a family member’s illness, employees who are technically on we’ll cover it all. probation, but who can appeal to MSPB their removals and are covered by 5 Check out our website for all the details, USC Chapter 75. and register before space runs out!

she only worked 24 hours per week which, the But what about time spent not in the presence Commission found, “affects the amount of of the administrative judge or agency official time that is reasonable.” The representative, such as drafting responses to Commission cured the agency’s act in only an affidavit or working on an appeal? What is granting six hours by ordering restoration of considered reasonable in those nine hours of administrative leave to the circumstances? Some agencies have internal complainant’s leave balances. guidance on how many hours of official time supervisors should grant employees for various Okay, so depending on how many questions aspects of processing their EEO complaints. the EEO investigator asks a complainant to In responding to requests for official time, or answer (and I’ve seen some that rival SF-86 defending against claims that reasonable forms), as many as 15 hours of official time can official time was not granted, you should check be considered reasonable. And what about to see if your agency has such internal drafting appeal briefs? The EEOC’s guidance. And of course, we can look to regulations permit complainants to designate decisions from the EEOC’s Office of Federal other federal employees as their Operations to further guide us on the amount representatives and allows them reasonable of official time considered reasonable to grant. amounts of official time to work on the complaint. In Sheryl S. v. Social Security Let’s look at a couple recent decisions. Administration, EEOC Appeal No. 0120150144 (November 1, 2016), the complainant’s In Virginia K. v. Department of Treasury, EEOC representative stated that it took him between Appeal No. 0120142662 (December 28, 2016), 20 and 26 hours to prepare an appeal to the the Commission looked at how many hours of Office of Federal Operations (which I presume official time were reasonable to grant to a also included a brief in support of the appeal, complainant who needed to respond to 80 not just the notice) but conceded that it was his questions from the EEO investigator. The first time preparing an appeal and may have complainant requested 80 hours, I guess taken longer than necessary. Noting that the presuming that each question would take an appeal did not relate to complex factual or legal hour to answer. The agency found six hours of issues, the Commission affirmed the agency’s official time to be more appropriate. On grant of 11.5 hours of official time as appeal, the Commission determined that 15 reasonable. [email protected] hours of official time was the right amount, stating, “Some questions were for duplicate information, i.e., Complainant’s name, position held, the identity of her supervisors, and her Employment past EEO activity. Complainant was able to Lawyers Having answer a number of questions with one word Drinks answers or short responses. Nevertheless, By William Wiley there were a large volume of questions. A number of them solicited information in detail, They say that one and some would likely require Complainant to does not want to watch gather and review documents.” The either laws or sausage being made. I might Commission also factored into its add to that list that’s it’s better not to watch determination as to the appropriate number of employment lawyers having drinks. official hours the fact that the agency needed complainant to perform her normal job duties, A couple of weeks ago, I was having dinner she was behind on time sensitive work, and with two of the best federal employment

Copyright © 2017 FELTG, LLC. All rights reserved. 11 FELTG Newsletter Vol. IX, Issue 3 March 15, 2017 lawyers I have ever known. After the EEOC’s regulations to the situation it is mandatory two-martini round of drinks (hey, per se unreasonable to allow EEO- we’re lawyers; they don’t call it a “bar complaint official time for an employee association” for nothing), we found ourselves in who is on a PIP? an animated discussion that involved raised arms, exaggerated facial features, and loud The good-government equities that would lead voices. Clearly, those poor diners seated us to an answer to this hypothetical are nearby must have thought us either to be balanced: engaged in something highly important or to be just flat out bat-poop crazy. No doubt they were • On one hand, we want civil servants to distracted, if not completely put off, from their be free of civil rights discrimination in respective meals by our disruptive discussion. the federal workplace. In pursuit of that honorable objective, it makes sense that And what was the topic that got us all fired up? the government would allow work time Official Time for the Pursuit of EEO for the employee to seek redress from Complaints. perceived discriminatory acts. • On the other hand, we are taking strong Here was the hypothetical scenario: hits from Congress and others charging that in the civil service we do a poor job 1. As Deryn well described in the previous of holding employees accountable for article, EEOC regulations require that an their performance, that we allow non- agency grant employees “a reasonable productive employees to linger on the amount” of duty time to work on their roles for months and years beyond the EEO complaints. time they should have been fired. 2. What if the employee has performed so poorly in the past that the supervisor EEOC makes the rules relative to official time. has determined that the employee is As Deryn described in Virginia K., the working at the Unacceptable level, and Commission will consider the work needs of has initiated a 30-day Performance the agency when deciding how much official Improvement Plan? As every time is reasonable; “she was behind on experienced practitioner knows, 30-days sensitive work.” What we are missing is an is routinely accepted by MSPB as an EEOC decision as to whether there might be a adequate PIP length. At the end of the situation in which zero official time is warranted PIP if the employee has continued his due to the agency’s need for productivity in a unacceptable performance, the particular situation. One or two of us at dinner supervisor has no choice but to remove concluded that, yes, there are work situations the employee from the position. 5 USC in which no official time need be granted by an 4302(b)(6). agency, and during the pendency of a PIP is 3. Then, during the PIP, the employee files one of them. One or two others at dinner that several extensive EEO complaints, night concluded just the opposite, that there complaints that would require many are no situations in which EEOC would hours of on-duty official time to prepare. conclude that denying any official time was 4. Question: Is the agency obligated to reasonable. grant ANY official time given that the employee is on the cusp of being fired; e.g., can it declare that when applying

So what do you think? Keep in mind that in the private sector, employers are not obligated to provide work time for individuals to pursue COMING UP IN DC discrimination complaints. They must do it on their own time. Also, keep in mind that there’s Legal Writing Week a movement afoot to try to run the government Washington, DC more like a private-sector business rather than June 5-9 like a bureaucracy. Perhaps that’s why Congress enacted legislation effective in FELTG’s limited-enrollment writing-based December that severely limits an agency’s program Legal Writing Week focuses on ability to place employees on an administrative effective legal writing in federal sector leave status, without any exceptions for employment law cases, including: administrative leave for employees to pursue EEO complaints. And finally, when you look • Drafting proposed discipline into the future trying to predict what will happen • Douglas Factor analysis if this issue ever gets to EEOC, be sure to • Petitions for Review factor in that the decision will be made by • Final Agency Decisions individuals appointed by the new White House, • Motions for Summary Judgment not by the one that just left town. • Editing your work

So how did we resolve all of this at dinner? Analysis and evaluation of writing Well, we did what any good group of lawyers exercises allows you to receive immediate would have done: we ordered another round of feedback from our instructors. drinks and moved onto other things to argue about. I wish you had been there with us. Grab your pen and notepad – or your laptop – and come prepared to write! By the way, here at FELTG, we’ve come up with two great alternatives as to what to do Registration is open now. We’ll see you when you are confronted with an employee on there! a PIP who requests official time under EEOC’s regulations. If you’d like to know what those are, you’ll want to come to the next offering of our world-famous seminar Absence and Medical Issues Week, starting March 27 in Washington, DC. Since you couldn’t make it to our dinner, maybe you’ll be able to hook up with us there. [email protected]