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 Copyright © 2017 FELTG, LLC. All rights reserved. FELTG Newsletter Vol. IX, Issue 3 March 15, 2017 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 Copyright © 2017 FELTG, LLC. All rights reserved. 2 FELTG Newsletter Vol. IX, Issue 3 March 15, 2017 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 Copyright © 2017 FELTG, LLC. All rights reserved. 3 FELTG Newsletter Vol. IX, Issue 3 March 15, 2017 older workers who were affected by the Let’s take a look at a grievance about discrimination.