By the time you get this newsletter, I’ll be firmly ensconced on a beach somewhere in Hawaii on vacation with my youngest daughter.  Yup, I know, it’s a terrible job but someone’s got to do it.   No need to feel sorry for me, though.  I like spending time with my daughter even if I have to endure warm tropical breezes and sunshine to do it.

Speaking of sunshine and warm, though not necessarily tropical, breezes, spring is not far off and we’re already looking forward to April in D.C.  April’s a beautiful month in our nation’s capital and we get to spend two weeks there with EEOC Law Week, beginning April 2nd and FLRA Law Week, beginning April 23rd.  There’s still space available, so register now and bring your camera.  (No, not to take pictures of us.  We’re not that photogenic as anyone who’s seen us can attest.)  But, with any luck, the cherry blossoms will be in bloom, along with a lot of other flora that those of us in the more northern climates won’t see until June or thereabouts.

And, speaking of June, we’ve just added an expanded version of our legal writing program -- Legal Writing for Federal Sector Employment Law Cases -- to the agenda for the week of June 18th.  Expanded from its three-day format to a weeklong program, this FELTG course not only gives you the basis of legal writing, it includes a series of workshops designed to give you the opportunity to put into practice what you’ve learned.  This is a limited enrollment class and sold out in December, so register early.

Time to catch a wave while the rest of you catch this edition of our newsletter.  See you back on the Mainland, soon.

EH
[click Links to read full articles]_______________________________________________________________
Sometimes a Rose is not a Rose
By William Wiley

Juliet:

"What's in a name? That which we call a rose
By any other name would smell as sweet."

Romeo and Juliet (II, ii, 1-2)

Ms Juliet may have been a Capulet hottie, but she would never be successful as a management advisor in the world of federal employment law. Sometimes when you call a rose by some other name, the smell gets sort of putrid.  Case in point:

Say, you walk out of your house one morning, go to get in your car that has been parked at the curb overnight, and notice that there is a big ding and a scrape down the side. If that happened, you might be tempted to say something like, “Oh, my goodness! It appears that my poor car has been involved in an accident.” You might report the incident to the local police using a Traffic Accident Report and they would probably send out someone from the Accident Investigation team to check the damage. And when you called your GEICO agent, you’d probably be told that your automobile accident insurance would cover the damage.

Now, let’s tweak the facts just a bit. Instead of it being your car that you were going to use that day, let’s say that it is a government car you have been assigned to use while you are on TDY. And then, let’s say that you decided not to report the incident as is required by agency regulations. Do you think an appropriate charge label in a proposed discipline letter might be “Failure to Report an Accident”?

Well, if you said “yes,” please consider yourself assigned to the Juliet Team of Charge Drafting. In a case very close to these hypothetical facts, the Board did not sustain this charge. It determined that an “accident” requires that there be proof of more than just damage to a vehicle. As the agency failed to introduce evidence of anything more than a “fender bender,” the Board declined to affirm the charge because of the way it was labeled (even though the Board opined that the specification might well have supported a different charge label). Rodriguez v. Department of Homeland Security, 2011 MSPB 103 (December 23, 2011).

The main reason the Board majority reached this interesting result comes from whoever drafted the agency’s Table of Offenses and Penalties (a document that we teach here at FELTG often confers on an agency more trouble than benefit) ...

And Speaking of Roses …

This month marks the end of the service of Mary Rose as a Member (previously the Vice Chair) of the Merit Systems Protection Board. Whether we agree with the decisions the members issue, or think that they missed something relevant, it is important that we acknowledge the role they fill in our business, and respect the dedication, hard work, and guidance they provide to us all. Member Rose has spoken out forcefully in her separate opinions regarding topics such as the issuance of non-precedential decisions in controversial cases, and most recently in arguing in dissent that common sense should prevail in deciding what constitutes an “accident.” See Rodriguez v. Department of Homeland Security, 2011 MSPB 103 (2011). On behalf of those of us here at FELTG, and we believe on behalf of others who spend a large part of their professional lives inside of Board case law, we thank her.

_______________________________________________________________
This Mixed-Up Case was Costly
By Ernest Hadley

When we first decided to launch a FELTG webinar/audio conference series, I suggested we run a limited enrollment program for free to make sure we actually knew what we were doing before we started charging for them.  Then, I suggested we do a program on mixed cases.  Bill’s verbatim response, “Let's do it, although I will be amazed if there are 20 people in government who will be able to sit still for an hour on the topic of mixed cases. Zzzzz.”  As you probably know, we filled the program within minutes of announcing it and had to turn many of you away.  Of course, the fact that it was free might have had something to do with it.  While I agree with Bill that mixed cases may not be the sexiest topic, I do think there’s a reason for the interest in the mixed case program beyond the fact that we were giving it away.  Mixed cases continue to bedevil those of us involved in this business and here’s a good example of why -- an agency that lost a “mixed case” on default judgment and then was ordered to pay attorney fees and costs as a sanction even though the case involved a claim under the Age Discrimination in Employment Act and attorney fees are not available in the administrative process under the ADEA.

In Adkins v. Federal Deposit Insurance Corporation, EEOC Appeal No. 0720080052 (January 13, 2012), the complainant, a GS-14 attorney, alleged discrimination on the bases of race, sex and age when he was denied positions at other facilities after being notified that his facility would close.  He also alleged that his employment would be terminated because he was not selected and instead chose to resign on June 30, 2000.

Although the agency had completed the investigation by January 2001, it did not provide him with a copy of the ROI despite his requests.   Finally, in February 2003, he requested a hearing before an EEOC administrative judge.  The judge ordered the agency to produce the complaint file.  The agency didn’t respond within the 15 days, but 37 days later told the judge that it had amended the complaint to include a constructive discharge claim and that it was now processing the complaint as a mixed case and drafting a final agency decision.  (You can already tell this is not going to have a good end for the agency.)

The complainant filed a motion for sanctions seeking default judgment.  Three weeks later, the agency finally sent the complainant a copy of the investigation and informed him that it had amended his complaint to include a constructive discharge claim.  The complainant renewed his request for default judgment and, at the same time, asked the judge to assume jurisdiction over the mixed case complaint because by now it was enmeshed in the EEO process.  Before the judge could issue a ruling, the agency issued a final agency decision finding, of course, no discrimination.

Oh, it gets even better.  The judge, who still did not have access to the complaint file, issued an order to retain jurisdiction over the complaint, but permitting the complainant to appeal his alleged constructive discharge to the MSPB and hold the remainder of the claim in abeyance.  The complainant did not file an MSPB appeal and no one informed the judge to stop holding the complaint in abeyance.  Some four years later, the judge reaffirmed his order retaining jurisdiction over the complaint and issued a default judgment in favor of the complainant on his age discrimination claim.

No real surprise that the Commission upheld the grant of default judgment finding the agency had not established good cause for the 862-day delay ...
_______________________________________________________________
Let's Play "Pin the Tail on the Citation"
By Ernest Hadley and William Wiley

OK, students. It’s time for the second question in our Hearing Advocacy Quiz 2012. Here is what we are looking for this time:

What are pinpoint citations and why are they important?

MSPB: Everyone knows what a legal citation is. For example, 5 MSPR 280 (1981) is a reference to volume 5 of the Merit Systems Protection Reporter, page 280. If you happen to have a set of books printed by West Publishing entitled Merit Systems Protection Reporter sitting in your bookcase, you can pull volume 5 down off the shelf, flip to page 280, and voila! there you will find the famous Douglas v. Veterans Administration penalty selection decision. The problem comes when you are looking for a particular holding within that decision. The Douglas decision runs for some 30 or 40 pages beyond page 280 on which it begins. So if you were to say, "In Douglas, the Board held yada yada yada, 5 MSPR 280 (1981)," and no more, you would leave the reader flipping through many pages trying to find exactly what was said.

To keep this from happening, the legal community invented the concept of "pinpoint citations." A pinpoint citation takes the reader to the specific page on which the holding can be found. If a particular holding for which you are referencing Douglas is found on page 292, the pinpoint citation would be, "Douglas v. Veterans Administration, 5 MSPR 280, 292 (1981), thereby saving the reader many hours of searching and frustration. And the last thing you want to do with a legal brief is frustrate the reader. Pinpoint citations are a great help when drafting legal arguments.

Administrative judges really like pinpoint citations. That's because most judges are overworked (and underpaid) and don't have the time to dig through a case to find the specific holding to which you are referring. By including a reference to the particular page number on which a holding can be found, you have enabled the reader to move quickly to your point for verification, and made a friend of the judge. We all like friendly judges.

This page-referencing pinpoint citation format worked well for over 100 years, as long as everyone had access to the bound volumes of the decisions. As time progressed and the bound volumes were replaced by electronic decisions online, referencing a specific page became an anachronism. To deal with this new development, the Administrative Office of the United States Courts in the mid-90’s suggested that courts begin to insert sequential paragraph numbers in their decisions, thereby replacing the need to construct a printed page number. The Merit Systems Protection Board adopted this format soon thereafter, and today references paragraph numbers in lieu of page numbers in many of its decisions. If you go to www.MSPB.gov and search the Board’s precedential decisions ...

EEOC:  The EEOC doesn’t have and never has had an official reporter.  The Commission’s federal sector decisions are available from a number of web-based sites, including CyberFEDS©, and Westlaw©.  Many of the decisions are even available on the EEOC website at www.eeoc.gov.  However, all of the web-based decisions, including the Commission’s website, suffer from the same basic problem—they have no pagination.  Yes, you can print out the decisions and they will print in pages.  However, the pagination can’t be seen online and the ultimate printed pagination is dependent on the source and not the decision.

Unfortunately, EEOC has not seen fit to do what the MSPB has done and use numbered paragraphs in its decisions.

The result of these simple facts is that there is virtually no means of giving pinpoint cites to the decisions of the EEOC Office of Federal Operations.  Yes, OFO’s actual decisions have page numbers, but those decisions only go to the parties to the appeal.

But, hey, having the decisions available online is a major step up from when I (Ernie) first started in this business and all EEOC decisions were on microfiche ...
_______________________________________________________________
Who Likes Conflict? I do, I do!
By Deborah Hopkins

Now that I have your attention, I have to be honest -- I actually don’t like conflict. Sure, on occasion I enjoy the challenge of a rhetorical jousting match, and I’m not afraid of a disagreement, but if I had to give a yes/no response to the question, “Do you like conflict?” I would answer no. In fact, since I’m being so transparent, I titled this article so you’d think to yourself, “Is this lady crazy? What kind of person actually likes conflict?” and start reading out of unmitigated curiosity. (Hey, it’s impossible to compete with minds like Ernest Hadley and William Wiley, so the fact that you’re still reading bodes well for my marketing strategy.)

The dictionary definition of conflict includes several terms:
* To come into collision or disagreement
* To be contradictory or in opposition
* To clash, fight or contend; do battle
 
While very few people enjoy the prospect of conflict, it’s something that everyone in our profession -- attorneys, supervisors, union representatives, HR/LR/EEO specialists and more -- will undoubtedly encounter. According to researcher Dr. Walter Bradford Cannon, there are two typical physiological responses to conflict: fight or flight. He says human beings react to the stress of conflict by a) becoming aggressive and facing the challenge in an offensive attack, or b) giving in to the urge to run away when faced with opposition.

Allow me to make this practical by presenting a hypothetical situation: I’m a regional EEO Director at a federal agency, and there is serious tension among my 12 collateral duty EEO Counselors about the preferred format for the annual 8-hour counselor refresher training. Four of the counselors want to contract FELTG’s expert instructors to deliver onsite training at the agency’s training center; four want to receive certification by attending FELTG’s EEOC Law Week in Washington, DC; the remaining four want to participate in FELTG’s EEO Counselor Refresher Training webinar series. It’s a growing dilemma. Several arguments have occurred in the work area and break room; no discipline has been necessary but the friction and hostility is building as the mandatory training deadline draws closer.

At this point, many EEO Directors would instinctually assume the “fight or flight” response. A Director might make the decision on training format, demand absolute compliance from his or her staff, and battle anyone who even questions the choice – or that Director might become completely overwhelmed by the disagreement among the counselors, walk away and hope the conflict resolves itself.

While certain times of crisis might necessarily call for a fight or flight responses (see Bill’s article Only One Answer from the December newsletter to read about an appropriate time to fly away), there’s an alternative response worth considering: Conflict Management. This concept, as discussed here and applied specifically to federal employees in the explanation below, comes directly from the U.S. Office of Personnel Management. The competency is so important that OPM has actually included it in their list of Executive Core Qualifications, under the heading Leading People. Let’s take a look at their description:

“Conflict Management Encourages creative tension and differences of opinions. Anticipates and takes steps to prevent counter-productive confrontations. Manages and resolves conflicts and disagreements in a constructive manner.”

The actual term Conflict Management, deconstructed, might essentially be defined as controlling, handling or directing conflict. In order to make OPM’s competencies relevant, take a moment to think of a conflict you’re facing. Got it? If you’re blessed to have a conflict-free work life, you’re one lucky individual -- in fact, you should probably go buy a Powerball ticket -- so feel free to use my hypothetical example of the EEO Director from above. Now, on to the practical application of Conflict Management.

Encourages creative tension and differences of opinions ...
Anticipates and takes steps to prevent counter-productive confrontations ...
Manages and resolves conflicts and disagreements in a constructive manner ...

For those of you who were wondering how the hypothetical scenario turned out: after allowing my EEO counselors to respectfully share their preferences for refresher training  -- in a meeting during which Jim and Mary sat nowhere near one another -- the team decided by majority vote that the best method of training for our regional staff was to bring FELTG instructors onsite for the refresher course. If only every conflict had such a happy ending!
_______________________________________________________________
You're Not Welcome, Thank You
By Ernest Hadley

In the last edition of our newsletter, Bill wrote a couple of related articles on Hadley v. Secretary of Health and Human Services, NIH, EEOC Appeal No. 0120113029 (December 6, 2011), a recent sexual harassment case.  See The Insidious Problem With The EEO Complaint Process and Why I Never Became A Staffing Specialist.  In his respective rants about the EEO complaint process, he made several points, including that the conduct in the Hadley case wasn’t “sexual,” didn’t rise to the level of being sufficiently severe and pervasive to create a hostile work environment and, gee, how is that the conduct was unwelcome anyway.  In my companion article in the last edition, EEOC: Just Too Damn Many Decisions, I offered my opinion that I agreed the conduct was not sufficiently severe and pervasive to create a hostile environment, but that it really didn’t affect the outcome of the case because it was a tangible employment action case and, in such a case, there’s no requirement that the conduct be severe and pervasive.  The simple reality is that the case analysis was muddled, so it wasn’t clear what the Commission was saying and, thus, confusion ensued.  But, now let’s turn to the other points -- why should the conduct in the case be considered “sexual” and whether the conduct was unwelcome -- because those points not only cause a lot of confusion for agencies, they result in a lot of agency liability because of that confusion.

So, let’s talk about those points and, in doing so, I know there’s little chance I will change Bill’s mind or even enlighten it.  (Just kidding, Bill, at least on the latter point.  You know I love you -- in a platonic way, that is.)

First, Bill points out that not every invitation to lunch has sexual overtones.  As he correctly notes, he and I go to lunch frequently not because we’re interested in sex, with each other that is, but because we’re hungry.  But, Title VII doesn’t make certain conduct impermissible in the workplace because it’s sexual.  What Title VII prohibits is discrimination based on sex as in gender.  Whether the invitation to go out was extended to the complainant in Hadley because the supervisor was hungry, thirsty or interested in sex isn’t what drives the analysis here.  What drives the analysis is that but for the fact that she was a woman, the invitation wouldn’t have been extended to the complainant by the supervisor.  Sexual harassment is simply a subcategory of gender discrimination the same way that gender stereotyping is a subcategory of gender discrimination.  It is one way, though not the exclusive way, the one individual can discriminate against another because of gender.  Nor is it of any consequence that the supervisor was interested only in the complainant and not all women.  That thinking was rejected by the D.C. Circuit in Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977).  The Barnes court reasoned that even though all of the advances were directed at one individual, but for her sex she would not have been the target of the advances.

So what happens in Hadley is this.  The supervisor asks the complainant if she will take him out and show him around.  She says no and offers as an excuse that she doesn’t want to risk running into coworkers and having her character and integrity questioned.  The supervisor continues to press on, saying to the complainant “it's not that you didn't want to go out with me? You would have been okay to go out with me?"  Over the next few days, he continued to ask the complainant if she would have dated him if they didn’t work together and to find ways around her reason for not going out with him.  Based on this evidence, I have no real idea if the supervisor was interested in wild and exotic sex or simply engaging conversation with a female companion, but I can pretty safely conclude that the complainant’s gender played a prominent role in the supervisor’s actions.  That’s all a Title VII complainant needs to show -- the conduct at issue was based on a protected status.

Unfortunately, it’s way too late in the day to change the way we talk about these cases.  The term “sexual harassment,” for better or worse and it may well be the latter, is imbedded in the legal lexicon.  So, what’s important for us as practitioners is to remember that it isn’t the sexual nature of the conduct that violates Title VII, it’s the fact that the conduct is based on gender.  Yes, it will also often be conduct that is sexual in nature, but that is not a per se requirement of gender discrimination.

Now, Bill’s second point about how’s a poor supervisor, or coworker for that matter, supposed to know his or her conduct is unwelcome and why an apology should be construed as an indication that the supervisor knew his conduct was unwelcome.  And here we need to go back to the first Supreme Court decision recognizing that sexual harassment violates Title VII -- Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).  The employer argued that because the plaintiff voluntarily engaged in sexual relations with the bank vice president -- i.e., she was not forced to have sexual relations with him -- the conduct was not unwelcome.  The Court rejected that argument finding that because the victim of sexual harassment “voluntarily” submits to the conduct does not mean it was welcome ...
_______________________________________________________________
Labor Relations is for Losers; Get Used to It
By William Wiley

If you have been reading Board cases for the past few years, or have participated in our MSPB Law Week seminar, you know one of the big challenges in this business is making certain that the agency provides the employee "due process." The most dangerous part of due process for the agency -- in other words, that aspect the agency is most likely to violate inadvertently -- is the requirement that the deciding official in a disciplinary action consider only those facts stipulated in the proposed discipline letter and the employee's response to that letter. See Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir., 1999).

Experienced practitioners advise deciding officials that they are to act like a judge. They are to isolate themselves from discussions with other managers about the case, the Internet, and their own memory as relying on personally observed behaviors that are not specified in the proposal letter can result in reversal of the penalty by the Board.  See Lopes v. Navy, 116 MSPR 470 (2011).

Typically, the role of the deciding official in a proposed disciplinary action is to:

1. Read the proposed discipline letter and all accompanying documentation, including any investigative report;
2. Consider the written if one is submitted;
3. Listen to the oral response if one is presented; and
4. Make a decision based on the evidence that is before him or her.

In a recent suspension that was grieved to arbitration, that's exactly what the deciding official did. He sat as a "judge" hearing the evidence before him and then making a decision based on that evidence. Unfortunately, the arbitrator who heard the case felt that such behavior was inconsistent with the responsibility of the deciding official. In reversing the suspension, the arbitrator faulted the deciding official for failing to do three things:

1. He did not verify the investigative reports prepared by the employee’s supervisors describing the act of misconduct,
2. He did not interview the grievant although he heard the grievant's oral response, and
3. He did not seek out exculpatory evidence.

Rather than being grieved to an arbitrator, had this suspension been appealed to MSPB, and had the deciding official acted to verify the investigative reports, or otherwise conducted an independent investigation, it is very likely that the Board would have found a violation of due process. However, because this matter was not within the Board’s jurisdiction, the arbitrator independently decided what he thought the deciding official should do in the interest of "just cause" and reversed the discipline when that conduct did not occur.  Department of Homeland Security, Customs and Border Protection and NTEU, Chapter 278, 111 LRP 77012 (FLRA 12/09/11).

There is a lesson in this case, but it’s is not what you might think. Agency advisors should NOT read this decision as saying that deciding officials in the future should independently engage in an investigation regarding proposed discipline. If that were the case, it would turn 30 years of disciplinary case law on its head. Rather, the lesson is this:

In the world of labor relations, you are going to lose some cases you should not lose.

What the arbitrator expected the deciding official to do on this case may be a good idea. However it is not what is required by regulation or law. In my opinion, and I would expect in the opinion of many others, this arbitrator was simply mistaken. But in the world of labor relations, mistaken arbitrators still get to make decisions ...

                              Hadley@FELTG.com | Wiley@FELTG.com