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Gary Gilbert

Ernest Hadley

Eleanor Laws

William Wiley

 Renn Fowler

 Peter Broida



 PLAN AHEAD for Spring 2009

Final Spring 2009 Agenda to be posted by the end of November, 2008.

MSPB Buzz®

By William B. Wiley, Attorney at Law

Executive Director, FELTG

AVOIDING THE MSPB-HEARING BLUES

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 – Good HEARING PRACTICE is a combination of skill, talent, and experience. Join William Wiley, Ernest Hadley, Peter Broida, and Gary Gilbert September 29 – October 3, 2008 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.

Link to Hearing Practices Week seminar description and agenda, or online registration.

 

EEOC BUZZ

By Ernest Hadley, Attorney at Law

President, Federal Employment Law Training Group

Congress Considers Disabilities under the ADA

On Wednesday, June 25th, the House of Representatives passed H.R. 3195, entitled “ADA Amendments Act of 2008.” [SEE link for full text]. If passed by the Senate and signed into law by the President, the Act would specifically reverse decisions by the U.S. Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139  (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S.Ct. 2133 (1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162 (1999) and Toyota Motor Mfg. V. Williams, 534 U.S. 184,122 S.Ct. 681 (2002).

 In the “Findings and Purposes” section, the House clearly expresses its dismay with those decisions stating:

 (3) while Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of handicap under the Rehabilitation Act of 1973, that expectation has not been fulfilled;

 (4) the holdings of the Supreme Court in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases, and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect; and

 The amendments would codify the definition of “substantially limits” for the purposes of defining an individual with a disability and, in doing so, make it easier for individuals to qualify for protection under the ADA.  The Act would change the definition of “substantially limits” to mean “materially restricts.”  Although the bill does not further define “materially restricts,” it does provide rules of construction for defining a disability that would significantly broaden coverage under the Act.

 The bill would also change the provisions protecting those who are regarded as having a disability to include an individual who “establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

 The bill was passed by a 402-17 margin in the house and now moves to the Senate.

Link to EEOC Law Week seminar description and agenda, or online registration.

MSPB BUZZ® 

By William B. Wiley, Attorney at Law

Executive Director, Federal Employment Law Training Group

 MSPB Changes Course and Aligns with FLRA

As most labor and employment law practitioners are aware, an employee in a collective bargaining unit who is terminated, demoted, or suspended for more than 14 days has a choice of challenging that action either a) to the U.S. Merit Systems Protection Board, or b) to an arbitrator via the negotiated grievance procedure. If arbitration is chosen, once the arbitrator’s decision (award) is issued, the employee (or former-employee) can request review of that decision by MSPB as long as the grievant has alleged civil rights discrimination in connection with the action. See 5 USC §7121(d).

Recently, the Board members at MSPB have begun giving significant scrutiny to the findings and conclusions set forth in arbitration awards, much as they might do when considering a Petition for Review challenging the initial decision of one of the Board’s administrative judges, e.g., Morales v. SSA, 2007 MSPB 287. Although there is significant case law from the mid-90’s holding otherwise, the current members have jumped right in to some of the thornier factual disputes and subtle interpretations involved in the adjudication of a grievance on appeal, and have not been hesitant to set aside any conclusions of the arbitrator with which they disagreed.

Well, not any more. Recognizing that its more recent opinions and orders were a departure from previous Board decisions, in  Fanelli v. Agriculture, 2008 MSPB 124 (June 10, 2008), the Board members reversed their direction and held that in the future, MSPB will follow the highly-deferential long-established precedent of the Federal Labor Relations Authority:

 

  1. An arbitrator’s interpretation of a collective bargaining agreement will be set aside upon review by the Board only if it fails to draw its essence from the CBA, and
  2. The Board will resolve any doubts as to the merits of an arbitration award in favor of the arbitrator’s findings and conclusions.

FLRA case law has stated its position on this issue more consistently and in more detail. An arbitration award can be set aside on appeal to FLRA only if the decision:

 

  1. Cannot in any rational way be derived from the CBA,
  2. Is so unfounded in reason and fact as to manifest an infidelity to the obligation of the arbitrator,
  3. Represents an implausible interpretation of the CBA, or
  4. Evidences a manifest disregard of the agreement.

 In other words, even if the Board members disagree with the conclusions made by the arbitrator, they will uphold the award as long as there is any plausible rationale for the conclusions. Frankly, it would have been better if the Board (and FLRA) had just said stated the standard of review as “any plausible rationale” or even adopted the appellate court review standard of “supported by substantial evidence.” However, those of us with experience in labor law have come to realize if there is a complicated-involved way of saying something and a simple-direct way of saying the same thing, our respected oversight agencies tend to go for the more-words-are-better approach most every time.

This recognition by the Board of the force and authority of an arbitrator’s award is consistent with similar private sector case law and goes a long way in upholding arbitration as a powerful, perhaps even preferred, method of resolving employee disputes in the federal civil service. Board Chairman McPhie and Vice Chairman Rose are to be commended for taking this policy approach, and practitioners on both sides of the table need to be aware of the exalted status our system of workplace justice places on arbitration awards made by mutually-selected adjudicators.

Yes, it’s fun topics like this that we’ll be covering at our new and expanded two-day session on federal labor relations law presented by Peter Broida and William Wiley October 23 and 24, at George Washington University in Washington, DC. Enroll now as space is absolutely limited to first-come first-served.

Link to MSPB Law Week seminar description and agenda, or online registration.

EEOC Proposed Rulemaking

By Ernest  Hadley, Attorney at Law

President, Federal Employment Law Training Group

After several years of work by a federal sector workgroup led by Commissioner Stuart J. Ishimaru, public hearings and meetings, the Equal Employment Opportunity Commission is proposing several changes to the federal sector EEO process.  The Commission is proposing both regulatory changes, as well as guidance changes to Management Directive 110.   Currently, the regulatory proposed changes are being circulated among federal agencies for a 60-day comment period.  The proposed regulatory changes must also be reviewed by the Office of Management and Budget, prior to publication in the Federal Register.

One change would permit the EEOC to review agency EEO programs for compliance with 29 CFR Part 1614 and MD-110 requirements, and allow the EEOC Chair to issue notices to agencies found to be in noncompliance.  Another change would permit agencies to create one-year “pilot projects” for the alternative processing of EEO complaints, subject to Commission approval.

A change is also proposed to the Commission’s class action complaint procedures that would bring it in line with the individual complaint procedures.  Currently, administrative judges issue recommended decisions on class action complaints and agencies can accept, reject or modify those decisions.  The proposed change would make class action decisions subject to the requirement that agencies can either fully implement the decision or appeal the decision to the Office of Federal Operations.

Follow link for complete draft of the Commission’s proposed changes.

Link to New Orleans EEOC & MSPB Update seminar description and agenda, or online registration.

Also from Ernest Hadley:

The Supreme Court has overruled an opinion by the U.S. Court of Appeals for the First Circuit holding that federal employees are not protected from retaliation under the Age Discrimination in Employment Act.  In Gomez-Perez v. John E. Potter, Postmaster General, 06-1321 (May 27, 2008), the Court found that the omission of an antiretaliation provision from the amendment making the ADEA applicable to federal employees was not an indication that Congress did not intend to protect federal employees from retaliation for filing age discrimination complaints. 
 Click on the link for the full opinion in Gomez-Perez. 
Why Agencies Should Take More Unacceptable Performance Actions

By William B. Wiley, Attorney at Law

Executive Director, Federal Employment Law Training Group

Recently I was presented with a very good question by a hard-working human resources specialist regarding a couple of fundamental aspects of unacceptable performance (Part 432) actions. I think the situation described highlights some of the recurrent problems faced in many agency offices, and I hope that my response is helpful in resolving those dilemmas:
   

QUESTION: I’ve heard you say that if an employee’s performance during an opportunity period is unsuccessful, the agency is required to take a performance based action.  I know that is the logical outcome, but I have a complicated case in which we are considering doing otherwise.  Title 5 of the US Code part 4303 (a) states, “…an agency may reduce in grade or remove an employee for unacceptable performance.” I interpret that to mean that the agency has the option to reduce in grade or remove the employee but is not required to do so.  Am I wrong?
 
Also, you said that the threshold for proving a performance-based action is a preponderance of the evidence.  I have a case in which a manager did an exceptional job of counseling a senior employee on his deficiencies before and during the opportunity period.  We have clear documentation of that counseling and of his performance during the opportunity period.  However, I’m told by others in the office that because it is a judgment call whether the employee met the standards outlined in the PIP, we probably would lose this case if it went to MSPB.  The manager and I argue that assessing performance at such a high level will always involve a judgment call; we cannot describe and measure the employee’s compliance with his work requirements as clearly as we could for a GS-4 file clerk.  

To complicate matters, the employee had some difficult experiences in his personal life during the opportunity period (serious marital problems, inter-family sickness and death).  Some of our staff fear that MSPB would look sympathetically on those circumstances in making a determination about the case.  Your comments suggested that MSPB would rely heavily on the manager’s judgment.  I would appreciate any thoughts you might have about the way MSPB would take into account these questions of manager’s judgment call and the personal life circumstances as mitigating factors.  Are there any cases that come to mind that address the question of judgment calls by the manager about performance?

RESPONSE: Regarding whether the law requires that an unacceptable performer be removed from his or her position, I’ve always interpreted 4302(b)(6) as requiring removal. In abbreviated form it states, “Each performance appraisal system shall provide for … reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.” To my read, that’s a mandate for how the system is to be designed – to require removal from the position if the PIP is failed. However, even if I am correct, nobody’s going to complain if you DON’T remove them after a failed PIP. This part of the law doesn’t really have an enforcement mechanism, so if you read the law differently and choose not to remove, more power to you. No one will ever challenge you.

On the small-p political side though, as an old government manager, I would not want to be the one to answer the call from the Washington Post reporter as to why I've decided to keep an unacceptable performer on the job. Of course, that's more a policy call than a legal call.

As for the evidence burden for proving a performance-based action, I hope I said it’s by substantial evidence and not by a preponderance of the evidence. By law, misconduct actions require support by a preponderance of the evidence and performance-based actions require support by only substantial evidence.  And substantial is less than preponderance.  So one of the big advantages of using the unacceptable performance procedures is that the burden of proof is lower on management than it would be if the misconduct procedures were used.  If an agency has a valid performance standard, it almost always wins an unacceptable performance action.

For example, you'll find this principle reflected in Valles v. Air Force, 104 LRP 15329, FEB 26, 2004.  In this initial decision involving an unacceptable performance action, the employee’s supervisors testified that the work assigned to the employee was reasonable.  The employee's expert witnesses testified just the opposite.  From page 9:

The appellant's witnesses, John Gowan, the holder of several patents in the field of directed energy, and Dr. Natalie Clark, a top weapons research scientist, testified as well that the tasks were so broad as to be too daunting perhaps even for them to perform and a prescription for failure for the appellant, suggesting that therefore the appellant should not be held accountable. The agency's witnesses, McDonald and Holt, testified that the tasks were doable and with the appellant's position and knowledge, he should have been able to produce a satisfactory project.

In the judge’s analysis it was no contest; the judgment of the supervisors controlled and the termination was upheld. You will not be able to find a case that holds otherwise.

With all due respect to your colleagues who counseled you not to go forward with your performance-based action because it was a "judgment call," they are mistaken.  Judgment calls are exactly the kind of case to go forward with an unacceptable performance action. Congress could not have been more clear when debating the passage of the Reform Act itself:

“Normally the Board should give deference to the judgment by each agency of the employee’s performance in light of the agency’s assessment of its own personal needs and standards.” Senate Report No. 969, 95th Congress 2d Session 10 (1978)

As for the employee's personal problems, they will have no bearing on whether the board will support the action.  This is not a misconduct case in which the Board has mitigation authority.  As I'm sure you know, the Douglas factors have no purpose in a performance-based action.  The Board cannot mitigate a performance-based action.  All it can do is either sustain or reverse it.  I am hard pressed to imagine why the Board might reverse a performance-based action based on the unfortunate personal circumstances of an employee.

Bottom line: The Board will defer to the judgment calls of your managers in a 432 action, and the employee’s personal circumstances will have no bearing on the outcome of the case.

These are the sorts of issues along with hundreds more that Peter Broida and I will be covering in our open enrollment MSPB Law Week seminars each spring and fall in Washington, DC. 

 Additionally, we will discuss trends with the MSPB at our SPECIAL FELTG Return to New Orleans, October 15 and 16, 2008!  If you’d like to know more, be sure to join us then. Best of luck out there!

Registration

 

Link to FELTG Fall Seminars Calendar