By Neil McPhie
February 24th, 2014 | Uncategorized
From a career advancement standpoint, sometimes one of the most important things a federal employee can do is have lunch with another federal employee. Of course, I’m not suggesting a promotion can hinge on a roast beef sandwich on rye. I’m talking about professional networking. In fact, a 2009 study published in the Journal of Applied Psychology found that “networking behaviors can contribute to differential salary growth over time” and “[i]ndividuals who engage in networking behaviors are more satisfied with their careers.”
Unfortunately, some federal employees, especially women, are missing out on various networking opportunities. They are not getting invited to lunch or other office meetings or functions, and, consequently, they are being starved of career-advancing opportunities. As an Equal Employment Opportunity Commission (EEOC) Women’s Work Group recently noted, this exclusion from networking opportunities results in “women not being privy to multidimensional professional and social relationships that may lead to promotional opportunities and vital career enhancement prospects.”
As far back as 1992, the MSPB had observed this trend, noting that “[t]here is, then, a substantial minority of men and women who believe that exclusion from a particular group or network can hinder their promotion potential.” One of the most important areas where networks come into play is job changes, the MSPB said. “[E]mployees, particularly at higher levels, learn about job openings from, or are recommended for jobs by, members of their networks.”
It is important for employees to remember that supervisors might not invite them to a meeting because some meetings are reserved for senior staffers, as was the case in Zenone v. Department of the Interior (2006). Sometimes employees do not realize they are welcome to join a supervisor or co-workers at lunches or other meetings, or they were not in the office when invitations to a social gathering were extended, as was the case in Kelly v. Department of Justice (2000). And sometimes a supervisor may accidentally forget to invite an employee. If the supervisor apologizes for this oversight, the EEOC may not find it to be deliberate or retaliatory, as was the case in McLemore v. Department of Transportation (2007).
Nevertheless, discrimination can result in an exclusion from attendance. Employees whose careers suffer due to such misconduct could be entitled to compensatory damages. For example, the EEOC case, Feris v. Environmental Protection Agency (1998), involved a complainant with a hearing disability who filed an EEO complaint alleging disability discrimination in violation of the Rehabilitation Act. His agency had failed to provide him with a reasonable accommodation in the form of a sign language interpreter at staff meetings and training sessions.
The agency in Feris issued a final agency decision (FAD) with a no discrimination finding. But on appeal the Commission disagreed, noting that “each time appellant was unable to attend a meeting at which he could have had some influence over the outcome, he was harmed.” The agency did award the appellant $15,000 in compensatory damages, but this amount did not reflect how the discrimination harmed the appellant’s career and reputation. On appeal again, the appellant claimed the agency “deprived him of access to the person to person contact experienced in small meetings and workgroups that are at the heart of the development of his professional career.” Taking into consideration the emotional harm and damage to the appellant’s career, the commission awarded him $35,000 in compensatory damages.
The EEOC Women’s Work Group recommended, among other things, agency-sponsored educational events on topics such as networking and hosting networking opportunities and events during work hours. These proposals should help make employees – not just women – feel more included. However, if employees believe they are being kept out of a professional circle due to discriminatory reasons, they should consult with a federal employment law attorney who can help push them into the network.
February 14th, 2014 | Federal Workplace
There is no question now that the federal government is struggling to keep sensitive personal information under wraps. A recent Government Accountability Office study found that in fiscal year 2012, federal agencies reported over 22,100 data breaches involving personally identifiable information (PII) – up 111 percent from three years earlier. While the GAO identified several sources of data breaches, ranging from the inadvertent loss of paper documents or portable electronic devices to cyber attacks waged by hackers or foreign nations, I remember hearing cases at the Merit Systems Protection Board (MSPB) about another type of source: federal employees who use other employees’ confidential personnel records to support Equal Employment Opportunity (EEO) complaints.
Agencies that selectively impose discipline on employees who cause data breaches, whether accidentally or intentionally, should be especially worried about this last type of source. Due to a 2012 MSPB decision, federal employees who use or remove official government documents to support EEO complaints may be able to evade discipline. This PII pickle stems from the fact that an agency’s attempt to discipline an employee who uses confidential personnel records during the EEO process can be perceived as unlawful retaliation. That was the main issue in Smith v. Department of Transportation (2007).
Smith involved a Federal Aviation Administration management and program analyst who claimed the agency discriminated against him because of his race in violation of Title VII of the Civil Rights Act when it did not select him for a supervisory program analyst position. While the complaint was being investigated, the complainant claimed he received an anonymously sent envelope containing information pertaining to the selected candidate’s EEO files. The selected candidate had claimed he was Native American to get the supervisory position, but he had identified himself as white in an EEO complaint he filed while in another position. The complainant provided this information to the EEO investigator and his attorney and later destroyed the anonymous letter.
During the disposition process, the selected candidate began to suspect his EEO complaints had been compromised. At his request, the agency conducted an internal investigation. It resulted in a 30-day suspension for the complainant based on the charges of 1. “unauthorized use of official government information”; 2. “unauthorized use of official government documents obtained through government employment”; 3. “unauthorized removal and possession of a personal government document”; and 4. “misstating information for another’s government claim.” He appealed this adverse action to the MSPB.
The appellant claimed this suspension was a retaliatory act for his prior EEO contact. An MSPB administrative judge did not sustain any of the charges and found the suspension to be retaliatory. However, the Board – while I was chairman – reversed the administrative judge’s refusal to sustain the three unauthorized use and removal charges. It found the suspension was not retaliatory, noting that “this is not a situation where the appellant innocently came across information which supported his discrimination claim” and “[t]he appellant cannot rely upon the anti-retaliation provisions as an insurance policy or a license to flaunt agency rules.” In a concurring decision, I said, “Nothing in Title VII of the Civil Rights Act, and nothing in the rules governing federal-sector EEO complaints, indicates that an employee who works in the human resources field should have an advantage when he files his own EEO complaint because he has access to the confidential personnel records of other employees.”
Following the MSPB’s decision, the appellant filed a petition for review with the EEOC, where he raised a disparate treatment claim. While the agency provided examples of two employees who were disciplined for disclosing information in violation of the standards of conduct while prosecuting their EEO complaints, evidence emerged that it had not disciplined another employee who had engaged in similar misconduct but who had not engaged in prior protected EEO activity. The agency said it had disciplined employees for similar violations that occurred outside of the EEO process, but it provided no further information to support that claim.
The EEOC in 2012 found the agency’s refusal to comply with an order to provide comparative treatment information was enough to establish pretext for a retaliation claim. Disagreeing with the MSPB’s decision, the Commission referred the case back to the Board. Concurring with and adopting the EEOC’s decision, the Board ordered the agency to cancel the appellant’s suspension and provide him with back pay and benefits.
I maintain, as I did in 2007, that an employee does not have a right to “disclose confidential records that did not pertain directly to him and that were not available to employees outside the human resources office.” The challenge for agencies lies in finding a “happy” medium for disciplining employees who improperly disclose government information while in the EEO process and others who are outside of that process. A failure to do so may encourage EEO complainants to skirt standards of conduct, putting other employees’ confidential records at risk.
Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at firstname.lastname@example.org.
January 27th, 2014 | Uncategorized
“I know it when I see it.”
That was what U.S. Supreme Court Justice Potter Stewart said in the 1964 case of Jacobellis v. Ohio, when he declined to provide a definition for a type of sexually obscene film that is not constitutionally protected. Stewart’s justification underscores how certain materials or practices can seemingly escape adequate description and how their identification is largely a subjective matter.
A recently-released Merit Systems Protection Board (MSPB) report on perceptions of favoritism makes clear that many federal employees are applying Stewart’s I-know-it-when-I-see-it standard to this prohibited personnel practice (PPP).
The MSPB report shows just how widespread perceived favoritism is in the federal workplace. For example, 28 percent of employees surveyed said they believe their supervisors engage in favoritism and 30 percent of human resources management employees likewise reported a belief in supervisory favoritism.
As chairman of the MSPB, I frequently heard individual right of action appeals from whistleblowers who had made disclosures about their supervisors’ alleged engagement in favoritism and who later claimed to have been victims of reprisal. It became clear to me that cases involving allegations of favoritism present issues over definition and personal perception.
For starters, the section of statute that defines the merit system principles, which include the “protection against…personal favoritism,” does not define “favoritism.” In its report, the MSPB defined favoritism by borrowing from a subsequent section of law that prohibits the granting of “any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment…for the purpose of improving or injuring the prospects of any particular person for employment.”
I would add that favoritism can sometimes be treated as an abuse of authority, which in Pasley v. Department of the Treasury (2008) the Board defined as “an arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or results in personal gain or advantage to himself or preferred other persons.”
The perception issues may arise, as the new report suggests, from the fact that the “typical work environment features ambiguity that precludes full confidence in supervisors making merit-based decisions.” But as MSPB chairman, I found that supervisors can often hide in this ambiguous grey area between perceived favoritism and actual favoritism. While the MSPB’s report provides valuable insights on why employees believe this PPP is so prevalent in the federal workplace, I worry that this strong emphasis on perception takes away from the fact that favoritism is an actual problem. Painting the problem as something in the heads of employees could dissuade them from reporting instances of favoritism to the Office of Special Counsel or their agency’s inspector general.
Due to the subjective nature of many supervisory decisions, it is often difficult to pin their actions as definitive examples of favoritism. Rare are those cases when an adjudicating body can describe an agency supervisor’s actions as constituting an “old boy network in operation” involving “undiluted favoritism,” as the 1st U.S. Circuit Court of Appeals did in Foster v. Dalton (1995).
Nevertheless, federal employees should not refrain from blowing the whistle on a supervisor’s abuse of authority or engagement in favoritism because they lack black-and-white evidence of the PPP. As I noted in the decision I co-authored for Pasley, the Whistleblower Protection Act (WPA) does not establish a “de minimis [or minimum] standard for abuse of authority as a basis of a protected disclosure,” meaning the WPA should protect them against reprisal so long as they reasonably believe this alleged PPP occurred.
I agree with the MSPB in its report that improving transparency will decrease perceptions of favoritism. But I would encourage employees who encounter what reasonably appears to be favoritism, whether in the form of pre-selection or preferential treatment, to call it as they see it.
January 13th, 2014 | Uncategorized
Putting a price tag on pain and suffering is an unpleasant task, and it was one I fortunately did not have to do very often while serving as the chairman of the Merit Systems Protection Board (MSPB). On those not-so-common occasions where the MSPB heard a so-called “mixed case,” which touched on both discrimination and adverse action issues, statute allows the Board to consider awarding compensatory damages to appellants who proved they were victims of certain types of intentional discrimination for “emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary [i.e., non-monetary] losses.”
I always found it odd how the pain and suffering of federal employees who were subjected to intentional discrimination could be valued under statue anywhere from up to $50,000 or $300,000, depending on the appellant’s agency and the severity and duration of the non-pecuniary losses he or she incurred, yet, at the same time, the pain and suffering of federal employees who where subjected to retaliation for blowing the whistle essentially had no value, because the Whistleblower Protection Act (WPA) did not provide for compensatory damages.
Fortunately, the Whistleblower Protection Enhancement Act of 2012 (WPEA) has put an end to this divergent approach toward the valuation of pain and suffering. This law, which took effect Dec. 27, 2012, added compensatory damages to the mix of correction actions the MSPB is authorized to order in whistleblower retaliation cases. This amendment will have a significant impact on agencies’ financial situations because it not only creates new liabilities (i.e., compensatory damages), it also does not cap them, unlike the similar liabilities associated with findings of intentional discrimination.
Just how significant this impact will be remains to be seen. I am not familiar with any MSPB cases in 2013 in which a whistleblower was awarded compensatory damages under the WPEA. Last August, in Barbara R. King v. Department of the Air Force, the Board did rule against the retroactive application of the WPEA’s compensatory damages section to an appeal filed before the law took effect.
In 2014, we will likely start seeing more whistleblower retaliation appeals seeking compensatory damages. The changes to the law “may also lead to more addendum appeals such as claims for compensatory and other damages or attorney’s fees,” the MSPB warned in its latest Annual Performance Report and Plan. We will also start getting a better sense of the fiscal implications of the WPEA’s compensatory damages provision. At the Equal Employment Opportunity Commission (EEOC), agencies found to have violated anti-discrimination laws were ordered to pay $7.2 million in compensatory damages in cases closed in fiscal year 2011. The U.S. Postal service accounted for 51 percent of that amount, according to the EEOC’s latest Annual Report on the Federal Work Force.
Traditionally, the EEOC and MSPB have looked to awards in similar discrimination cases to determine the appropriate amount for compensatory damages. For example, in Linda D. Edwards v. Department of Transportation (2011), an MSPB administrative judge, citing EEOC decisions, pointed out that $25,000 was an “appropriate amount as the complainant presented sufficient objective evidence to establish that he had experienced, mental anguish, emotional distress, sleeplessness, irritability, loss of self-esteem, and injury to professional reputation as a result of his termination for a period of 6 months.”
So far, EEOC and MSPB awards have mostly moved in tandem because statute had put caps on the award amounts in discrimination cases. Now that the WPEA has removed the cap on compensatory damages in whistleblower retaliation cases, it will be interesting to see if valuations of reprisal-induced pain and suffering at the MSPB will pull ahead of those at the EEOC.
December 30th, 2013 | Uncategorized
These days, private sector employers want more information about job candidates, aside from what has been provided through normal channels, such as résumés. A 2012 CareerBuilder survey found that almost two out of five employers researched job candidates on social networking sites. While this independently-obtained, unrebutted information is generally considered fair game in the realm of private sector recruitment, it can be unlawful in the federal civil service.
At the Merit Systems Protection Board, this type of information is referred to as an “ex parte” (i.e., one-sided) communication. Federal employees have a constitutional right to be notified of the reasons for a removal action and to respond to them. When a deciding official bases a removal decision on information from an ex parte communication not mentioned in a removal notice, the employee is deprived of the opportunity to adequately respond to all of the charges against him or her.
I have long been concerned about due process violations caused by ex parte communications, and I worry the problem is worsening. In fact, shortly before President George W. Bush in December 2003 designated me as the MSPB’s vice chairman, I butted heads with the board’s chairman in Shockley v. U.S. Postal Service (2003). I sought to oppose the removal of an employee whose due process rights appeared to me to have been violated by ex parte communications received by a deciding official.
To me, the chairman in this case seemed overly concerned with how consequential ex parte communications were to the charges. Yes, the U.S. Court of Appeals for the Federal Circuit’s decision in Stone v. Federal Deposit Insurance Corporation (1999) said, “Only ex parte communications that introduce new and material information to the deciding official will violate the due process guarantee of notice.” And to determine what qualifies as “new and material” information, the Board needs to consider whether the information: 1. is cumulative or new; 2. was known to the employee who also had the opportunity to respond to it; and 3. would unduly pressure the deciding official into making a particular decision. However, as I stated in Shockley, “Nothing in these factors…indicates that the materiality of an ex parte communication should be judged, for due process purposes, according to whether the communication affected the outcome of the case.”
The MSPB seems to forget that all evidence is cumulative; it builds and builds in the mind of the fact finder. Consequently, the Board has operated under the assumption that it can identify what tidbit of evidence tilted the scale in the mind of the deciding official. It is like pinpointing the exact straw that broke the camel’s back.
The Federal Circuit’s recent decision in Young v. Department of Housing and Urban Development (2013) highlighted the dangers associated with this underestimation of cumulative information. In this case, the agency claimed ex parte communications to a deciding official did not result in a due process violation; they were cumulative in that they merely “confirm[ed] and clarif[ied] information that was already contained in the record.” The court rejected this assertion, noting that the ex parte communications constituted the introduction of new and material information because they marked “a ‘huge’ departure from written statements already on the record.” Further, the court said “the first Stone factor [i.e., cumulative v. new information] strongly suggests a due process violation while any deficiency of the third factor [i.e. undue pressure] is less significant.”
While I doubt Young will compel agencies to show all their cards when it comes to all of the reasons behind removal actions, the decision at least emphasizes that every card counts, whether it is an ace or a deuce. And it is up to federal employees and their attorneys to make sure agencies are hiding nothing up their sleeves.
Neil McPhie is the Virginia Managing Partner for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at email@example.com.
December 16th, 2013 | Uncategorized
Last month marked the four-year anniversary of my departure from the U.S. Merit Systems Protection Board (MSPB), which I chaired from December 2003 to November 2009. My tenure on the Board, which began with my appointment from President George W. Bush, remains a high point in my legal career. Without question, my path to the chairman’s seat of this independent quasi-judicial agency was anything but traditional. I grew up in a simple household in Trinidad and Tobago. Before coming to America to pursue a career in law, I was actually a newspaper reporter in Port of Spain.
Although I am no longer chairman, I remain close to the MSPB. Only now, instead of hearing petitions for review, I am representing federal employees before the Board as the Virginia Managing Partner of Tully Rinckey PLLC, one of the nation’s largest federal employment law firms. Starting with my first job in the legal profession as an Equal Employment Opportunity Commission (EEOC) trial and appellate attorney in 1976, I have always been keenly interested in the protection of government employees’ rights. Much of my three-plus decades of public service were dedicated to this end.
For my first column, I’d like to focus on a debate I thought I had resolved during my last year as chairman. This debate revolves around the question of whether the Board can review cases where national security concerns prompt an agency to remove an employee from a non-critical, sensitive position. In August 2012, a panel of the U.S. Court of Appeals for the Federal Circuit in Berry v. Conyers ruled that the U.S. Supreme Court’s decision in Department of the Navy v. Egan (1988) barred the MSPB from overruling agency eligibility determinations for sensitive positions, irrespective of whether they require access to classified information. The panel reversed and remanded two separated MSPB decisions.
The Federal Circuit’s decision in Conyers has been widely blasted as making employees in non-critical, sensitive positions susceptible to whistleblower retaliation and discrimination. Essentially, the decision allows agencies to place the removal of employees in non-critical, sensitive positions outside the reach of the MSPB by citing national security concerns as the basis for ineligibility determinations. The legal basis for this unfortunate outcome is something I have long recognized – and it is an opinion that other Board members, past and present, have not shared.
Conyers addressed a question similar to the one I answered in Brown v Department of Defense (2009), which involved the removal of an employee in a non-critical sensitive position. I advocated for adherence to the precedent set by Egan, in which the Supreme Court said it was not reasonable for an outside, non-expert body to review an agency’s security clearance determination. “The absence of an alternative standard that would satisfy Egan further demonstrates the Board review of the agency’s determination in this case would be incompatible with that controlling the Supreme Court precedent,” I said in a separate decision. The Federal Circuit took a similar position in Conyers. Highlighting how contentious this issue has been, the vice chairman of the Board at the time disagreed with me in Brown, resulting in a split-vote decision. The vice chairman’s disagreement, however, was short-lived. A few months after Brown, she changed her view in Crumpler v. Department of Defense (2009)
When an administrative judge in 2010 decided on Conyers, she actually referenced the disagreement in Brown. On appeal, the Board found the agency’s designation of the position as non-critical, sensitive was “insufficient to limit the Board’s scope of review to that set forth in Egan.” So began the Conyers litigation saga.
Last January, the Federal Circuit vacated the panel’s August 2012 decision and it granted a rehearing en banc for the two cases. Then last August, a majority of the court dismissed one of the two merged cases because the appellant had no “cognizable interest in the outcome of this case.” The court, however, reversed and remanded the Board’s decision in the remaining case.
The legal fight may not end there. On Nov. 15, the American Federation of Government Employees (AFGE) filed a petition for writ of certiorari with the U.S. Supreme Court for the case of Devon Haughton Northover, which was the case from Conyers that the Federal Circuit had reversed and remanded. A few days later, AFGE’s general counsel David A. Borer, said in a Senate Homeland Security and Governmental Affairs subcommittee that “AFGE will continue to press this issue both in court, in what is now the Northover case, and before Congress. Conyers should not be allowed to stand,” according to his written testimony.
I believe closure to this issue is needed. Should the Federal Circuit’s decision become finalized, the burden would then fall on Congress for establishing the “alternative standard that would satisfy Egan” that I four years ago noted was lacking in my separate decision for Brown.
Neil McPhie is the Virginia Managing Partner for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at firstname.lastname@example.org.