Federal Employment Law Annual Symposium

Happy 30^th Birthday CSRA!

by William Wiley

Executive Director, FELTG

Oh, those heady halcyon days in the federal civil service from 1883 to January 9, 1978. Sure, we had an oversight agency called the Civil Service Commission and a couple of Executive Orders regarding union rights. But for the most part, we in the personnel business were relatively free to do whatever we wanted to do regarding performance appraisal, discipline, and employee appeals.

Then, along came January 10, 1979, the effective date of the Civil Service Reform Act of 1978. I remember that day well. It was a Wednesday, and the national weather services were reporting blizzard conditions with widespread record cold and heavy snowfall from the Midwest to the East. I had gone to bed the night before, a wide-eyed naïve Personnel Management Intern, thinking about what I could do to make the workforce happy, and I awoke as a hard-nosed steely-eyed Labor Relations Specialist, ready to do whatever it took to defend management and to understand the new laws, procedures, and employee rights that had been created by Congress. The time in the civil service before January 10, 1979, has come to be known as the “Pax Pre-Reforma,” an obvious tip of the hat to the oft-referenced “Pax Roma” period of peace that followed Rome’s conquering of the known universe. Beginning on January 10, 1979, we had all entered into a brave new world of enforceable employee rights laws, and the federal work place would never be the same again.

Here’s what civil service reform gave us that day:

· A mandate to bargain with the union to agreement or impasse resolution via the Federal Service Impasses Panel.

· An employee right to a hearing to challenge discipline exceeding a two-week suspension before the newly created U.S. Merit Systems Protection Board (appealable all the way to the U.S. Supreme Court!).

· Direct EEOC oversight of discrimination claims, including EEOC hearings and appeals to U.S. district court.

· An independent agency known as the Office of Special Counsel to investigate claims of “prohibited personnel practices” and especially illegal whistleblower reprisal.

And for the past 30 years (10,958 days, three decades, nearly a third of a century), this delightful bit of legislation has been the heart and soul of federal employee rights and protections, and has provided extreme job security for those of us responsible for helping folks figure out how this comprehensive system works. Yes, if it were not for that cold Wednesday back in 1979, many who are reading this article today would be agency contract lawyers or (gasp) staffing specialists. Thank goodness for the forward-looking 95^th Congress.

But that’s all in the past. Nice perspective, but otherwise useless. So what does the future hold for us, Mr. Bill? Well, we learn from history, my friends, so consider the following:

· 1883: Congress passed the Pendleton Act, establishing the federal civil service.

· About 30 years later, Congress passed the Lloyd-Lafollette Act, establishing that a federal employee could be terminated only for such cause as supports the efficiency of the service (the legal grandmother of all other civil service protections).

· About 30 years after that, Congress passed the Veterans’ Preference Act, a major milestone in the legalization of employee protections from unfair treatment.

· About 30 years after that, Congress passed the Civil Service Reform Act (CSRA), the premier legislative recognition of the rights of civil servants to be free from reprisal and coercive treatment at the hands of unscrupulous agency officials.

And while Congress seems to move in 30+ year cycles, our Presidents move (if they move at all) relative to their taking their initial oath of office:

· In President Kennedy’s first year in office, he implemented Executive Order 10988, for the first time giving official recognition to federal labor unions.

· In President Nixon’s first year in office, he implemented Executive Order 11491, strengthening the role and the rights of unionized federal civil servants.

· In President Carter’s first year in office, he initiated the legislative consideration of the bill that eventually became the CSRA.

So where are we today? Well, if the old calendar on the wall is correct, we are 30 years past the last major Congressional action regarding the federal civil service, and we are entering the first year of the administration of President Obama. The concept of a “perfect storm” has become so overused that it is almost trite nowadays, but for those of us in this business of federal employment law, we had better keep out heavy coats and snow tires close at hand. There may soon be another cold Wednesday in our futures, along with the guarantee that – regardless of the problems in our economy - our services in protecting the rights of employees relative to management actions will be needed long into the future.

And in case you think that there is nothing new under the CSRA sun, check out this recent MSPB decision that increases the rights of union employees:

MSPB Buzz^©

Even the Board Can Issue (Presidential) Pardons

by William Wiley

You think you know something about MSPB case law? Well, check this out. Put yourself in the position of a union legal advisor. What would you advise in this scenario?

Jennifer comes to you for help. She’s an active part-time union representative and she’s in a difficult situation. She has in her possession certain agency documents that were given to her by another employee who she is representing in a discrimination case. The agency has ordered her to turn over the documents because it believes it is improper for her to have them. She does not want to turn them over, but she is concerned as to what the agency might do. She has been on the receiving end of a disciplinary action within the past year. Should she turn over the documents?

If you know MSPB case law, as a good union legal advisor would, you would most likely advise her to turn over the documents. She has been given a direct order that is not clearly unlawful, and a refusal to obey an order is punishable as insubordination (the deliberate and willful refusal to perform assigned work) or at a minimum, a failure to follow instructions. Her prior disciplinary action counts as “progressive discipline,” and a new act of serious misconduct could well result in her termination. If she thinks the order to return the documents is improper, she can always comply with the order, and then grieve after compliance without being insubordinate.

Well, if this is your advice, Poopie, you now know why you are not a Board member. Good old MSPB, as it nears the end of a Presidential administration and the term of its Chairman, granted this employee a “pardon” and reversed her termination for refusing to return the documents, Marshall v. Department of Veterans Affairs, CB-7121-07-0017-B-1 (December 11, 2008). In doing so, it concluded she had been reprised against for engaging in protected union activity. The Board reasoned that recent incidents of reprisal and other related incidents presented a “mosaic” of facts that led to its conclusion that the termination was illegal. She will not only get her old job back, but she will also get about 2 ½ years of back pay plus well-deserved attorney fees.

As for what the agency should have done when confronted with an employee refusing to return government documents held improperly, the Board opined, “We see no apparent reason why the agency could not have pursued an order against the union from an arbitrator, agency or court with jurisdiction to obtain the copies of the documents.” Regardless of which side of the litigation table you work from, you have to admit that this approach would be one of the more awkward resolutions of a workplace disagreement.

Beyond the somewhat controversial aspects of the merits of this holding, this decision highlights one of the more ridiculous aspects of current federal employment law. Consider this:

An employee’s whose termination is upheld by an arbitrator has no automatic right to file an MSPB appeal of that award; the arbitrator’s conclusion is final and binding.
However, if the employee has alleged discrimination as an issue in the termination, he or she can appeal to MSPB and have the Board review the arbitrator’s entire analysis for compliance with civil service law and regulation even if there is no proof whatsoever of discrimination.

In 1978, Congress apparently recognized the value in the finality of an arbitration decision because it did not specifically provide for MSPB review of the arbitrator’s analysis. However, by providing the right to challenge an arbitration decision in which the grievant has said the magic word “discrimination,” the Board has now put itself, for better or for worse, in the role of reviewing “binding” decisions of arbitrators, and substituting its analysis of the law and the facts whenever it concludes the arbitrator did not do a good enough job. Board review of an arbitration award may make perfect sense from a policy standpoint, but it is not what Congress said should happen when it passed the Civil Service Reform Act in 1978.

Note to President-Elect Obama: Now is the time, and you are the one. Across the board civil service reform for the 21^st century is due. Enough of piecemeal legislation - this bill aimed at that agency, that legislation designed for certain “special” groups of employees. You should not need to be an attorney with an LL.M in labor law to understand the procedures designed to ensure the fundamental fair treatment of federal civil servants. What we have today is disjointed, complex, and antiquated. What we need in its place should provide core protections easily available to every federal employee, combined with the statutory and regulatory flexibility for agencies to adapt themselves to their specific missions.

Government service is an honor, and we as a society owe it to those who serve to protect them from unfair treatment. Modern civil service reform is the key in that obligation.

Hiring and Promoting the Disabled Focus of New EEOC Guidance

by Ernest Hadley

President, FELTG

Did you know that a federal agency can legally give preference to an individual with a disability in hiring and promotion decisions? With the employment of individuals with so-called “targeted disabilities” experiencing a sharp decline over the last 10 years, the Equal Employment Opportunity Commission has issued new guidance entitled, “Questions and Answers: Promoting Employment of Individuals with Disabilities in the Federal Workforce” that specifically addresses the measures that agencies can take in hiring and promotion decisions involving individuals with disabilities.

The guidance, in conjunction with the Commission’s Leadership for the Employment of Americans with Disabilities (LEAD) Initiative, is designed to reverse the trend of the last decade and encourage agencies to increase their hiring and advancement of individuals with disabilities generally and individuals with “targeted disabilities” in particular. “Targeted disabilities” include deafness, blindness, missing extremities, partial and complete paralysis, convulsive disorders, mental retardation, mental illness, and distortion of a limb and/or spine.

The Rehabilitation Act requires that all federal agencies have an affirmative action program for individuals with disabilities, and EEOC Management Directive 715 requires that all agencies with 1,000 or more employees establish a special recruitment program with specific goals for the initial hiring and advancement of individuals with disabilities. According to the guidance, “[t]hese goals should be set in a way that will achieve measurable yearly progress, accounting for attrition and for the distribution of individuals with disabilities in the agency’s overall workforce, and in particular segments and levels of under-representation.”

The guidance also includes some specific steps for agencies to take in achieving their goals for the employment and advancement of individuals with disabilities, including:

taking disability into account as a selection factor where an applicant with a disability is otherwise qualified, whether or not the applicant has sought employment establishing numerical hiring goals for people with targeted disabilities on an annual basis as required under Management Directive 715, and incorporating those goals into the strategic mission of the agency;
engaging in outreach to, and targeted recruitment of, both internal and external candidates with disabilities;
using excepted appointment authorities that apply to hiring people with targeted disabilities (see LINK);
taking disability into account as a selection factor where an applicant with a disability is otherwise qualified, whether or not the applicant has sought employment under one of the special appointment authorities or through the competitive process; and
creating training and development plans for individuals with targeted disabilities once they are hired, to enhance advancement and retention.

Follow LINK for the complete guidance.

New ADA Changes “Perceived Disability” Cases

by Ernest Hadley

President, FELTG

The Americans with Disabilities Act Amendments Act of 2008 changes the definition of individuals with disabilities by substantially broadening the definition of an individual who is “regarded as” having a disability. Under the ADAAA, an individual will be “regarded as” having a disability if he or she has an actual or perceived physical or mental impairment, whether or not the impairment is or is perceived as substantially limiting a major life activity. ADAAA, Sec. 3(3)(A).

Although complainants who meet the definition of being “regarded as” an individual with a disability are not entitled to reasonable accommodation, id. at Sec. 5(h), those complainants are now protected from discrimination. The result is that agencies will need to be more careful in making determinations that an individual does not meet the physical or mental requirements for a job.

For example, in Sainz v. Secretary of Treasury, EEOC Appeal No. 0720030103 (September 19, 2008), the complainant was awarded $100,000 in compensatory damages after showing that his dismissal as a Metal Forming Machine Operator was based on a perceived disability. The agency terminated the complainant approximately an hour before his probationary period expired based on his alleged inability to perform his duties as a machine operator due to a knee injury.

The administrative judge in the case found that the complainant was substantially limited in the major life activity of working. On appeal, the Office of Federal Operations refrained from reaching the same conclusion, but did conclude that the agency perceived the complainant as being substantially limited in the major life activities of lifting, standing and walking. OFO also found that the complainant could perform all of the essential functions of his position as a machine operator.

Had the complainant in Sainz not been able to demonstrate that the agency perceived him as being substantially limited, he would not have been an individual with a disability. In such a case, under the current ADA, the complainant would not have standing to raise a disability claim and would lose any such claim even though his termination was clearly linked to the agency’s misperception of his medical condition.

That’s the very situation the ADAAA is intended to address. By removing any requirement that a complainant demonstrate that the agency perceived an impairment as being substantially limiting, the ADAAA broadens coverage to include an individual who demonstrates a link between a physical and mental impairment and an agency employment action.

This doesn’t mean that agencies will now lose any case in which it takes an employment action that is related to a medical condition. However, it does mean that agencies will need to insure that such actions are taken only after an “individualized analysis.”

****

On September 17, 2008, the U.S. House of Representatives passed by voice vote the Senate version of the ADA Amendments Act of 2008. S. 3406. The House had previously passed its own version of amendments to the Americans with Disabilities Act. The intent of both the House and Senate versions of the amendments was to reverse several Supreme Court decisions and broaden the applicability of the ADA. In the end, the Senate language prevailed. Despite expressing some earlier reservations, President Bush signed the bill into law on September 25, 2008.

The amendments specifically reverse the Supreme Court's holdings in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, (1999) and Toyota Motor Mfg. V. Williams, 534 U.S. 184 (2002). In addition, the amendments specifically instruct the Equal Employment Opportunity Commission to revise 29 C.F.R. § 1630.2(j)(1)(ii), which defines a "substantial limitation" of a major life activity as being a "significant restriction as to the condition, manner or duration under which an individual can perform a particular major life activity . . ." See link for Full Version

AVOIDING THE MSPB-HEARING BLUES

MSPB Buzz®

By William B. Wiley, Attorney at Law

Executive Director, FELTG

Uninformed managers can sure lose a case for the agency, but representatives uneducated in HEARING PRACTICE skills can lose them, as well. Recent mistakes in prehearing practice requirements underscore two common errors.

Failing to Object to Adverse Rulings by the Administrative Judge – In Gonzalez v. Transportation, 2008 MSPB 143 (June 30, 2008), the appellant requested several individuals as witnesses during the prehearing conference. As is often the case, the AJ denied the request for a number of the proffered witnesses. After receiving an adverse initial decision on the merits of the case from the judge, the appellant complained on Petition for Review that the AJ had erred by denying those witnesses. However, the Board declined to consider the appellant’s argument because he had failed to enter an objection to the AJ’s rulings when the rulings were made in the prehearing conference.

Failing to Submit an Affidavit to Support Alleged Facts – In Walker v. Air Force, 2008 MSPR 144 (July 1, 2008), in an attempt to justify a late-filed petition for review (PFR), the appellant and his attorney claimed they did not receive the judge’s initial decision in a timely manner. However, because these claims were not submitted to the Board as an affidavit or statement submitted under penalty of perjury, the Board declined to consider the validity of the arguments.

Lessons Presented by these Decisions – Although these two mistakes were made by appellants and their attorneys, hearing practice oversights such as this occur just as frequently on the agency representative side of the table. So learn to be proactive in situations like these:

Any time an AJ rules against you on an issue important to your case, make sure to state an objection and that your objection is made a matter of record. If an adverse ruling takes place prehearing (as in an unrecorded telephonic prehearing conference), make your objection orally contemporaneous with the ruling and then follow it up with a written reiteration of the objection for the record. If the adverse ruling is made at hearing, make sure you are on the record at the time or that you reiterate your objection as soon as the record reopens again and the court reporter is creating a transcript.

Any time you are submitting written argument to a judge or the Board, and you are relying on assertions of fact that are not already in the record (an admitted document or testimony), have whoever has first-hand knowledge of those facts sign a statement sworn to under perjury and attach that statement to your written filing. For example, if you are filing a motion to postpone the hearing date because of a personal situation, describe the facts that make up that situation in a statement, add a line at the end that states “Sworn to under penalty of perjury,” sign and date the statement, and you will avoid the problem in Walker above. Oh, you still may not win your argument, but at least you won’t have it dismissed without consideration.

Other Lessons to Be Learned – Need to strengthen your understanding of all aspects of discipline and performance cases, or leave abuse and medical issues? The MSPB Law Week with experts Peter Broida, Renn Fowler and William Wiley is a comprehensive set of inter-related seminars, next offered March 23 --27, 2009! Early registration is strongly recommended for this highly demanded FELTG offering.

Looking for the latest developments and current trends in EEO law and practice? A thorough understanding of the basics and training that emphasizes the important topics of accommodating individuals with a disability, damages and remedies, selection, promotion and disciplinary cases before the Commission? The EEOC Law Week with instructors Gary Gilbert, Ernest Hadley and Eleanor Laws will bring you up to speed best by attending the full week of seminars, April 20 -- 24, 2009.

Good HEARING PRACTICE is a combination of skill, talent, and experience. Join the FELTG team April 27 -- May 1, 2009 as they present and demonstrate the introductory through advanced practices necessary for the agency or appellant representative to successfully present a case at MSPB, EEOC, or in arbitration.

Also, FELTG has been responsive to your requests and program feedback, offering the training subjects that interest you during our Specialty Practice Areas Week, April 13 -- 17, 2009. Explore the New ADA in depth with Gary Gilbert and Ernest Hadley, Whistleblowing and other Retaliation Claims with experts Peter Broida, Gary Gilbert and William Wiley, the complex Family and Medical Leave Act with specialist Carl Bosland, and Labor Relations with Broida and Wiley. All seminars have been designed by FELTG's highly experienced attorneys, to bring you "TRAINING BY PROFESSIONAL FOR PROFESSIONALS".