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United States
Office of Personnel Management

New Developments in Employee
and Labor Relations

March 1999

TABLE OF CONTENTS

Highlights

Reasonable Accommodation

  • On March 1, 1999, the Equal Employment Opportunity Commission published comprehensive policy guidance entitled, Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. The guidance applies to Federal agencies as well as private sector employers and contains extensive information on reasonable accommodation issues. (See Reasonable Accommodation).

Performance Management Workshops

  • The Performance Management and Incentive Awards Division is offering a series of workshops:

  • Basic Performance Management, April 13, 1999, in Washington, DC; May 18, 1999, in Dallas, Texas; and June 15, 1999, in San Francisco, California.

  • Measuring Employee Performance: How to Develop Employee Performance Plans That Align With Organizational Goals, April 14, 1999, in Washington, DC; May 19, 1999, in Dallas, Texas ; and June 16, 1999, in San Francisco, California.

  • Understanding Awards, April 15, 1999, in Washington, DC; May 20, 1999, in Dallas, Texas; and June 17, 1999, in San Francisco, California. (See Performance Management).

Strategic Compensation Conference

  • Strategic Compensation: Making Pay, Classification, and Performance Management Work Together to Support your Agency's Mission in the New Millennium will be held September 8-9, 1999, at the Hilton Alexandria Mark Center in Alexandria, Virginia. (See Performance Management).

Office of Personnel Management Issues Guidebook on Domestic Violence

  • The Office of Personnel Management just issued a 41-page guidebook, Responding to Domestic Violence: Where Federal Employees Can Find Help. (See Employee Health Services).

Federal Child Care Summit

Affordable, Quality Child Care: An Employer Issue is the theme of this premier summit being held May 12-14, 1999, at the Westin Crown Center, Kansas City, Missouri, in response to President Clinton's directive that the Office of Personnel Management host "...a nationwide summit designed to showcase model public and private sector solutions to child care needs." The summit offers four outstanding plenary sessions, concurrent workshops covering 20 different topics, and opportunities to network with other attendees. (See Family-Friendly Workplace Advocacy Office.

Alternative Dispute Resolution

  • OPM's First Annual Director's Award for Outstanding ADR Programs.

    In an effort to support President's Clinton's May 1, 1998, memorandum to Heads of Executive Departments and Agencies advocating ADR, OPM has announced its first annual Director's Award for Outstanding ADR Programs. The award ceremony has been tentatively set for July 1999. Nominations are due by April 2, 1999. For more information, please contact Gary Wahlert on (202) 606-2920, or via email at gdwahler@opm.gov.

Charges and Penalties

  • A Merit Systems Protection Board administrative judge upheld the appellant's removal after sustaining one charge (disrespectful conduct--interrupting her supervisor's meeting, yelling at her supervisor, and advancing toward her supervisor menacingly) and a second charge (deliberate failure or unreasonable delay in carrying out instructions) based on one of two specifications. The full Board also upheld the removal, saying that it has found insolent disrespect towards supervisors "so seriously undermines the capacity of management to maintain employee efficiency and discipline that no agency should be expected to exercise forbearance for such conduct more than once." The Board said that, since removal was reasonable based on the disrespectful conduct, it "[did] not need to determine whether the second charge . . . was sustained." Lewis v. Veterans Affairs, PH0752980127-I-1, December 31, 1998.

  • The Merit Systems Protection Board states that, in order to support a charge of absence without leave (AWOL), an agency must show either: (1) that the employee was absent and that the absence was not authorized or (2) that a request for leave was properly denied. In this case, the AWOL charge was one of several specifications in support of the agency's charge of insubordinate defiance of authority, wanton disregard of directives/guidelines. The Board sustained the charge and upheld the removal. The Board also ruled that its administrative judge's references to specifications as "charges" in the initial decision was not an error that prejudiced the appellant's substantive rights as claimed. Taylor v. Air Force, DA07529800387-I-1, December 31, 1998.

    Contact: er@opm.gov or (202) 606-2920.

Compensatory Damages

  • The full Board vacated an initial decision in which the appeal was dismissed as moot because the appellant had been granted disability retirement by OPM and the agency had rescinded the earlier removal action and replaced it with the disability retirement action. The Board held that the appeal was not moot because an "outstanding viable claim of compensatory damages" still existed based on the appellant's allegations of disability discrimination. The Board reiterated its position in Currier v. U.S. Postal Service, 79 MSPR 177 (1998), that a mere rescission of an action does not render an appeal moot when the rescission does not provide all of the potential relief available from the Board. The Board also noted that nothing in the approval of the disability retirement application prevented the appellant from arguing that disability discrimination had occurred. (See Jurisdiction for an explanation of the Board's analysis.)Lamberson v. Veterans Affairs, DE07520970456-I-1, January 20, 1999.

    Contact: er@opm.gov or (202) 606-2920.

Contracting Out Not a § 7106(b)(1) Matter

  • The Federal Labor Relations Authority (FLRA) set aside an award in which the arbitrator held that the agency's refusal to bargain on the union's contracting-out proposal was a violation of a memorandum of understanding in which the agency had agreed to bargain on § 7106(b)(1) matters. Contracting out, said the Authority, isn't a § 7106(b)(1) matter because it deals with who will do the work, not with the way in which it will be done. FLRA said the following:

    [P]roposals concerning contracting out do not relate to the way in which an agency performs its work or the tools or devices that may be used in accomplishing it. Rather, such proposals relate to an agency's decision-making process concerning by whom the work is best performed -- either in-house by agency employees or by employees of an outside organization. [FLRA's footnote 6, entered here, reads as follows: "This view is supported by the legislative history of the Statute which indicates that the term "methods" was intended to mean "how" the work is performed; the term "means" was intended to mean "with what"; and the term "personnel" was intended to mean "by whom" agency operations would be conducted."]

    General Services Administration and American Federation of Government Employees, Council of GSA Locals, Council 236, (GSA v. AFGE, Council 236), 0-AR-3010, November 30, 1998, 54 FLRA No. 136.

    Contact: cplmr@opm.gov or (202) 606-2930.

Discrimination

  • In an initial appeal, the appellant alleged that his removal was based on sex and age discrimination. Although the administrative judge sustained the agency's removal action, he summarily rejected the appellant's discrimination claims, finding that they were unrelated to the removal action. Subsequently, the Merit Systems Protection Board (Board) issued its decisions in Currier v. Postal Service, 79 M.S.P.R. 177 (1998), and Bennett v. National Gallery of Art, 79 M.S.P.R. 179. In Currier, the Board held that, under 5 USC § 7702(a)(1), where an employee is affected by an adverse action and the employee alleges that the action is based on prohibited discrimination, it is required to decide both the discrimination issue and the appealable action. In Bennett, the Board held that, under 5 USC § 7702, it does not distinguish between frivolous and nonfrivolous allegations of discrimination or between sufficient and nonsufficient facts to support a prima facie case of discrimination, therefore holding that an employee is entitled to have the Board decide the merits of his discrimination claim in accordance with the procedures set forth at 5 USC § 7701. In this case, the Board found that the appellant clearly alleged that the agency's removal was based on age and sex discrimination. The full Board found that the administrative judge erred by rejecting the appellant's discrimination claims without affording him an opportunity for a hearing and a decision on the merits of his discrimination claims in accordance with 5 USC § 7701. Accordingly, the case was remanded for further adjudication. Brown v. Postal Service, AT0752970817-I-1, February 18, 1999.

    Contact: er@opm.gov or (202) 606-2920.

Employee Health Services

  • Federal employees can learn about places to turn for help in responding to domestic violence. OPM just issued a 41-page guidebook, Responding to Domestic Violence: Where Federal Employees Can Find Help.

    For the Federal employee who may be experiencing domestic violence, the guide outlines places to turn in the workplace for help, as well as personnel flexibilities and entitlements that can help the individual cope with the situation and stay productive on the job. Included in the guidebook is a personalized safety checklist, as well as information about national and community resources to help someone in an abusive relationship find safety and support.

    For supervisors, the guide outlines the management tools and sources of support available in the Federal workplace. Supervisors can also learn how to recognize the possible signs of domestic violence, how to broach the topic if violence is suspected, and where to refer the employee for the right kind of help. Concerned friends and co-workers can help in ways that managers cannot, and the guide explains the unique ways they can best help someone in an abusive relationship.

    The guidebook is available on Office of Personnel Management's web site at www.opm.gov/workplac/html/domestic.htm. You may order the booklet through the Government Printing Office, Superintendent of Documents. Check your OPM Rider Bulletin for information on ordering through the OPM Rider. Also, your agency's personnel office may have a copy to review. Single copies of the booklet were sent to agency Directors of Personnel.

    For more information about the guidebook, contact OPM's Employee Health Services Branch at: ehs@opm.gov or (202) 606-1269.

Employee/Labor Relations Training

  • The Office of Personnel Management's annual Symposium on Employee and Labor Relations (SOELR '99), held March 2-5, 1999, in Hershey, Pennsylvania was attended by about 940 individuals from agencies across the country and overseas. This comprehensive conference is devoted to recent developments and emerging issues in employee relations, labor relations, dispute resolution, performance management, and partnership. The location of SOELR in 2000 is to be announced by May 1999, with conference brochures mailed out in early fall 1999. The brochure (including its enclosed registration form) and other SOELR update information will also be available in the Fall on the Office's home page at www.opm.gov/er.

    Contact: soelr@opm.gov or (202) 606-4446.

  • The Federal Dispute Resolution Conference (FDR) will be held in San Antonio, Texas on August 22-26, 1999. The program and costs for this conference, sponsored by FDR, Inc., have not been set. FDR, Inc. is working to send out brochures containing registration information and registration forms sometime in April. The latest information about FDR is located on the internet at www.shawbransford.com.

    Contact: pforner@aol.com or (202) 463-8400, ext. 348.

Hatch Act

  • In a Hatch Act case prosecuted by the Office of Special Counsel, the court upheld the Merit Systems Protection Board decision that it was proper for the employee in this case to be removed for being a candidate in a partisan election while employed in his state's Medicaid office. The court held that the Board applies the same standards in deciding whether removal is appropriate regardless of whether the employee is a state or Federal employee. Finally, the court rejected the employee's First Amendment free speech claim, stating that "the Supreme Court has never recognized a fundamental right to express one's political views by becoming a candidate for office." Alexander v. Merit Systems Protection Board, 1999WL20652, Court of Appeals for the 6th Circuit, January 21, 1999.

    Contact: er@opm.gov or (202) 606-2920.

Indefinite Suspension

  • The agency placed a criminal investigator on an indefinite suspension pending the dispositions of criminal proceedings in two states. While the administrative judge affirmed the merits of the indefinite suspension, the administrative judge found that the agency should have terminated the suspension when it received notice from the employee that the criminal actions had been resolved. The administrative judge considered one court's placing of the employee on "pretrial probation" and the other court sentencing to a one year "conditional discharge" were dispositions of the criminal proceedings. In addition, the administrative judge found the delay, approximately three months, between the date the employee informed the agency that her charges had been resolved and the date of the agency's proposed removal was unreasonable. Therefore, the administrative judge ordered the agency to pay the appellant back pay for that period of time through the effective date of her removal.

    On review, the full Merit Systems Protection Board (Board) held that the employee's "pretrial probation" only placed the case "on file." When a case is placed "on file," the case may be brought forward by the prosecution at any time without a need for issuance of a new complaint or indictment. Therefore, the Board did not consider the employee's "pretrial probation" a dismissal. The Board found that in the absence of an actual guilty plea or acquittal, the charge could still be brought forward, and, therefore, the agency could not act as if the criminal matter had been resolved. The Board held that as long as the charge was outstanding, the agency could continue the indefinite suspension. The administrative judge's initial decision was reversed. Cooper v. Health and Human Services, NY0752960417-I, February 3, 1999.

    Contact: er@opm.gov or (202) 606-2920.

Interim Relief

  • In a case where the appellant was assigned to a different position during interim relief from the one from which he was removed, the Merit Systems Protection Board held that the agency (Postal Service) was not required to make an undue disruption determination under the law because the agency collective bargaining agreement provided that the agency was authorized to assign the employee to any vacancy. Further, the agency stated that it would have reassigned the employee even if he had not been removed. The Board's majority denied the agency's petition for review on the merits. While agreeing with the denial, the Vice Chair stated that it was unnecessary for the Board to address the interim relief issue at all. Potosky v. United States Postal Service, AT0752970414I1, December 23, 1998.

    Contact: er@opm.gov or (202) 606-2920.

Jurisdiction and Procedure

  • The administrative judge issued a recommendation concerning the compliance petition. Almost immediately, one of the appellant's attorneys sent a letter with four attachments to the Board members without serving a copy on the agency. The Board found that because this submission related in part to a decision pending before the Board, and was not served on the agency, it constituted a violation of the Board's prohibition at 5 CFR 1201.102 on ex parte communications. However, it rejected the agency's request for sanctions under 5 CFR 1201.103, since the agency did not argue that it had been harmed. Gubino v. Transportation, AT0752970455-X-1, December 17, 1998.

  • The decision letter informing the appellant of his removal correctly informed him that, as a preference-eligible Postal Service employee, he could both grieve his removal and appeal it to the Board. However, it further advised that "if you have an MSPB appeal pending at the time the Union appeals your grievance to arbitration, or if you appeal to the MSPB after the grievance has been appealed to arbitration, you will be deemed to have waived your access to arbitration." He withdrew the appeal to pursue arbitration, but later challenged the dismissal based on that withdrawal. Whether the Board looked at this filing as a petition for review, or a newly filed appeal, it was properly dismissed. Foster v. Postal Service, NY0752980254-I-1, January 8, 1999.

  • The appellant had filed two separate petitions. The first came about when the Office of Personnel Management (OPM) terminated his disability retirement benefits in 1994 because he no longer suffered from schizophrenia. The appellant said his disability retirement was based on a knee condition. The Board found that while the appellant had filed on the basis of a knee condition, OPM's predecessor, the Civil Service Commission, had approved benefits on the basis of a mental condition. The case was remanded for a determination concerning whether the employee was entitled to disability retirement in 1975 on the basis of his knee condition. Meanwhile, he had filed a new appeal claiming that his disability retirement in 1975 had constituted a constructive removal because it was based on agency misinformation. With respect to the first appeal, the Board overruled OPM and found that he had been and remained disabled by his knee condition. It ordered that OPM grant the disability retirement application filed by the appellant in 1974. With respect to the second, the Board invoked the doctrine of judicial estoppel and found the appellant was barred from seeking reinstatement and back pay, the potential remedies in his constructive removal case, after successfully litigating his conflicting contention that he was disabled from useful employment, and therefore entitled to disability retirement benefits. Tompkins v. Navy, DC0752950413-I-1, January 14, 1999.

    Six days later, the Board issued a decision which clarified its reading of judicial estoppel, in Lamberson v. Veterans Affairs, DE0752970456-I-1, January 20, 1999. In this case, OPM had approved the appellant's disability retirement application, but there had been no litigation on that subject. The Board determined it would not automatically apply the concept of judicial estoppel to such a purely administrative decision, but would rather analyze the facts and circumstances of each case independently. It acknowledged a split in the courts on this issue, but found persuasive the position of the EEOC, which holds that a person can qualify for disability benefits while still having a valid disability discrimination claim. This decision enumerates with approval the five factors which the EEOC has provided for use in such cases. They are unlikely to be applied to appellant Lamberson, however, since the Board found she does not appear to have appeal rights, and remanded for a determination on that issue. Both Tompkins and Lamberson contain extensive cites and discussion.

    Both Lamberson, (cited above) and Porter v. Treasury, DA1221980056-W-1, February 2, 1999, contain further reminders for practitioners and administrative judges about mootness. The fact that Lamberson's removal had been retroactively canceled and replaced by her disability retirement did not moot her case, because she had potential entitlement to compensatory damages if she prevailed on the merits. Similarly, appellant Porter's detail, the subject of her whistleblower complaint, was canceled, but this did not make her case moot because the issue of consequential damages, among other things, had not been addressed. Cases are not moot if there are still unresolved issues related to potential relief (such as damages) or corrective action that could be ordered.

  • When the law governing pay for Postal Inspectors changed, the agency developed two formulas for converting Inspectors from the old system to the new Inspection Service Law Enforcement (ISLE) system. When it applied the formulas to the appellant, it converted her to an ISLE-13, step 9. Over a year later, the agency informed her it had erred by incorrectly including in its computation some service with a different agency. It therefore retroactively corrected her pay to ISLE-13, step 8, and this appeal followed. The agency argued that the action was not appealable because the agency had reduced her pay from a rate that was contrary to law or regulation, and the administrative judge (AJ) agreed. Upon review, the Board cited Lomax v. Defense, 78 M.S.P.R. 553 (1998), and found it was error for the AJ to put the burden of proof on the appellant rather than on the agency. In such cases, it is the agency which must show that the original pay rate was contrary to law or regulation. The case was remanded to determine whether the appellant is even an employee with appeal rights, and to allocate the burdens of proof properly if she is. Mulligan v. Postal Service, CH3443980294-I-1, February 9, 1999.

  • Counsel for appellant requested that the administrative judge (AJ) recuse himself from the case and from all other cases where an appellant was represented by any member of his law firm. The basis of that request was an unfair labor practice charge the attorney had filed against the AJ because of a ruling he made in another case. The attorney asserted that his pending litigation against the AJ could cause appellants who were his clients to question the AJ's impartiality. The AJ declined the request and certified to the Board for interlocutory review the issue of the propriety of his ruling. With extensive citation to various court rulings, including one Supreme Court case, the Board found there was no basis for recusal. The AJ had shown no bias against the appellant, and the attorney's ULP filing against him was not close to being enough to raise a presumption of bias. Significantly, the decision quotes In re Drexel Burnham Lambert, Inc. 861 F.2d 1307 (2d Cir. 1988), which states that a "judge is as much obligated not to recuse himself when it is not called for as he is obliged to when it is." Washington v. Interior, DE0752980430-I-1, February 26, 1999.

    Contact: er@opm.gov or (202) 606-2920.

Maintenance of Status Quo ... New Framework for § 7116(a)(6) Violations

  • In a split decision, Member Wasserman dissenting, the Authority held that implementation of a change in conditions of employment while a request for Impasses Panel assistance is pending is a violation of § 7116(a)(5). However, such implementation is not also a violation of § 7116(a)(6) unless the General Counsel can "establish that the implementation failed to cooperate with an impasse procedure or decision."

    Moreover, "an agency's obligation to bargain in good faith [under § 7116(a)(5)] includes the obligation to maintain the status quo until completion of bargaining." (Bold added.) "[T]he impasse process is, in effect, subsumed within the collective bargaining process as a whole, such that a failure to maintain the status quo during the impasse process violates section 7116(a)(5)." Immigration and Naturalization Service, Washington, D.C. and National Border Patrol, American Federation of Government Employees, AFL-CIO, (INS and National Border Patrol, AFGE, AFL-CIO), SF-CA-30165, January 12, 1999, 55 FLRA No. 19.

    Contact: cplmr@opm.gov or (202) 606-2930.

Performance Management

  • New Performance Management Web Pages. An abundance of performance management and award-related information is now available on the Office of Personnel Management web site. The new Performance Management Technical Center web pages contain material on appraisal and awards issues, teams, measurement, and other performance-related topics. Much of the material that is now electronically available was formerly published in our bimonthly newsletter, Workforce Performance, or other performance management publications. Also included on the web pages is a guide to legal citations that support the appraisal and awards programs, as well as links to other web sites that provide related information. The new web pages can be found at http://www.opm.gov/perform.

  • Performance Management Workshops. The Performance Management and Incentive Awards Division is offering a series of workshops. The workshops are intended for Federal human resources professionals, managers, supervisors, and employees with responsibilities for the program-related areas. The cost of each workshop is $120 per person. Attendance at each workshop will be limited to 50 participants. Registrations must be received in the Performance Management and Incentive Awards Division at least 5 business days before the workshop start date. Confirmation letters will be sent in advance of the workshop date. The workshops being offered are:

  • Basic Performance Management ­ A workshop designed to provide a basic understanding of performance management and its various components. The workshop is intended for anyone new to performance appraisal or awards or who just wants to brush up on them. The workshop will cover the requirements and flexibilities found in the Governmentwide regulations. It also will address the fundamentals and principles involved in planning, monitoring, developing, rating, and rewarding performance.

    Dates and Locations

    April 13, 1999, in Washington, DC
    May 18, 1999, in Dallas, TX
    June 15, 1999, in San Francisco, CA

  • Measuring Employee Performance: How to Develop Employee Performance Plans That Align With Organizational Goals ­ Vice President Gore urges agencies to align employee performance with organizational goals and to focus on results. Writing individual and work unit performance plans that support those goals is one way to make that happen. Workshop participants will learn how to determine what objectives to measure at the work unit level, develop performance elements to support those objectives, develop work unit and individual measures and standards, and determine how performance will be monitored.

    Dates and Locations

    April 14, 1999, in Washington, DC
    May 19, 1999, in Dallas, TX
    June 16, 1999, in San Francisco, CA

  • Understanding Awards ­ A workshop designed to provide a solid understanding of the bases and forms of awards. The workshop will cover eligibility issues and the distinction between recognition and incentives. It also will address aligning awards with organizational goals, and looking at what is legal vs. what is appropriate. At the conclusion of the workshop participants will be able to identify effective awards strategies and understand the boundaries and limitations for using different types of awards.

    Dates and Locations

    April 15, 1999, in Washington, DC
    May 20, 1999, in Dallas, TX
    June 17, 1999, in San Francisco, CA

    • How to Register: Submit a completed SF-182, DD1556, or equivalent to --

    U.S. Office of Personnel Management
    Performance Management and Incentive Awards Division
    1900 E Street, NW, Room 7412
    Washington, DC 20415-8340
    Fax: 202-606-2395
    email: performance-management@opm.gov

    For additional information call the Performance Management and Incentive Awards Division at 202-606-2720.

  • Strategic Compensation Conference. (Yes, this is a conference for performance appraisal and award specialists too!) STRATEGIC COMPENSATION: Making Pay, Classification, and Performance Management Work Together to Support your Agency's Mission in the New Millennium will be held September 8-9, 1999, at the Hilton Alexandria Mark Center (formerly the Radisson Mark Plaza Hotel) in Alexandria, Virginia. You will want to attend, especially if you have attended the Performance Management Conference, Transformations, in previous years. This conference will feature presentations on innovative compensation strategies and related issues, including: performance appraisal, awards, measurement, classification, broadbanding, current compensation strategies, and compensation experiences of non-title 5 agencies.

    The conference will focus on presenting information to help agencies improve the performance management, compensation, and classification tools that support their missions. The cost of the conference is $475, which includes two continental breakfasts, luncheons, and coffee breaks.

    The conference is designed to provide Federal managers and Human Resources practitioners with updates, forecasts, and practical information about the total Federal compensation environment --pay administration, performance management, and position classification. The sessions will include both conceptual information for those who will need to understand the issues and make decisions as well as practical applications and lessons learned for those who will need to administer the new systems of the future. For additional conference information, please call the Total Compensation Policy Center at (202) 606-8486, or email totalcomp@opm.gov, or fax your request to (202) 606-2548.

Probationary/Trial Period

  • The employee, a Veterans Readjustment Act appointee who was terminated during his one-year trial period, filed an appeal alleging that his termination was the result of marital status discrimination. According to the employee, his supervisor was treating him differently from her married subordinates because he was single and she considered him "available." The employee contended that when he refused her sexual advances she terminated him during his trial period. He further added that he was the only employee in his work area to be terminated during their trial period. Applying the holding in Flores v. Farmers Home Administration, 12 MSPR 286, 287 (1982), where the Merit Systems Protection Board (Board) found no right to a jurisdictional hearing because the appellant did not allege sufficient facts to support the allegation that her supervisor's expectations were based on martial status, the administrative judge dismissed the employee's appeal without a jurisdictional hearing.

    In distinguishing this case from its previous holding in Flores, the full Board applied its holding in Uriarte v. Agriculture, 6 MSPR 393, 395 (1981). In Uriarte, the Board held that where allegations of marital status discrimination and sex discrimination are so intertwined that no meaningful finding as to one can be made without the other, the Board cannot narrow its scope solely to the marital status discrimination claim. In this case, the Board found that the appellant's allegations present claims of marital status discrimination and sex discrimination so intertwined that a finding on one cannot be made without consideration of the other. Accordingly, the Board remanded the appeal for a jurisdictional hearing. Ellis v. Treasury, SF315H980406-I-1, February 9, 1999.

    Contact: er@opm.gov or (202) 606-2920.

Reasonable Accommodation

  • On March 1, 1999, the Equal Employment Opportunity Commission published comprehensive policy guidance entitled, Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (ADA). The guidance applies to Federal agencies as well as private sector employers and contains extensive information on reasonable accommodations issues such as medical documentation, the impact of the Family and Medical Leave Act (FMLA) on requests for leave as a form of reasonable accommodation, and undue hardship. The text of the document is available on EEOC's website (www.eeoc.gov) or can be obtained by calling the EEOC's Publications Distribution Center on (800) 669-3362 or TTY (800) 800-3302.

    Contact: er@opm.gov or (202) 606-2920.

REASONABLE FEES FOR LIMITED SUCCESS

  • Relying on a Supreme Court decision and MSPB precedent, the Authority sustained an attorney fees award in which the arbitrator, after sustaining a grievance relating to administrative leave "to the extent of one-forth of the amount claimed," awarded one-forth of the fees incurred.

    The Authority turned down the union's claim that the amount of the award wasn't reasonable. It noted, among other things, that the Supreme Court in Farrar v. Hobby,506 U.S. 103, 114 (1992) held that the extent to which a plaintiff prevailed in theunderlying litigation is the most critical factor to consider in determining reasonable attorney fees. It also noted that MSPB, in determining the "reasonableness" of attorney fees, has held that it is necessary to consider whether a fee award should be reduced because the relief ordered was significantly less than what was sought. Stein v. United States Postal Service, 65 MSPR 685, 690 (1994). National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia,(NAGE, Local R4-6 and Army), 0-AR-3000, November 30, 1998, 54 FLRA No. 137.

    Contact: cplmr@opm.gov or (202) 606-2930.

Retirement

  • The appellants who held Police Officer or Supervisory Police Officer positions, challenged the agency's decision to deny law enforcement officer (LEO) retirement credit. In the initial decision, the administrative judge, without holding a hearing, determined that the appellants did not make a nonfrivolous allegation that the Board had jurisdiction because their requests for LEO status were filed after more than 6 months from when the appellants assumed their positions. The appellants argued that the reason they did not meet the 6 month deadline was because they were not aware of the existence of possible LEO coverage. The appellants also argued that the agency official who denied their LEO status was not the appropriate official to make such a determination.

    In regard to the 6 month regulatory requirement at 5 CFR section 842.804 (c), the Board cited Fitzgerald v. Department of Defense, PH0842940200B-1, September 8, 1998, and held that the only issue was whether the appellants had proven by preponderant evidence that they were actually unaware of their LEO status. Because the allegations made by the appellants in this regard, if proven, could constitute a nonfrivolous allegation, the Board held that the administrative judge could adjudicate the case on its merits. In regard to the agency official who denied the LEO retirement credit, the Board noted that the controlling regulations at 5 CFR sections 842.803 and 842,804 require that the "agency head" make the LEO determination. "Agency head" is defined at 5 CFR section 842.802 and includes designated representatives of the agency. The appellants argued that the individual who made the determination did not meet this definition.

    The Board held that since it is the final decision of the agency denying coverage that is the action subject to appeal, and since the denial of a request for LEO coverage does not have to be made by the "agency head," the definition of "agency head" is immaterial to the appeal. The Board vacated the initial decision and remanded the appeal to the regional office for further adjudication. Streeter, et al, v. Department of Defense, NY0842970176-I-1, December 31, 1998.

    Note: The following cases discuss the same issues as described in Streeter, above:

    Hamilton, Hill, and Stevenson v. DOD, DC0842970096-I-1, February 3, 1999; Doyle, et al, v. Veterans Affairs, DC0842970187-I-1, February 5, 1999; Fairchild, et al, v. Veterans Affairs, DC0842970760-I-1, February 10, 1999; Margrey, et al, v. DOD, NY0831940347-I-1, February 10, 1999; and Manoney et al, v. Veterans Affairs, CH0842970229-I-1, February 16, 1999.

    Contact: er@opm.gov or (202) 606-2920.

Timeliness

  • The appellant filed an initial appeal alleging that her reassignment to another GS-5 position constituted a constructive demotion because her former GS-5 position was later upgraded to a GS-6. Based on the evidence, the administrative judge concluded that the appellant's constructive demotion appeal was untimely because she was aware of the jurisdictional facts concerning her appeal before she was even reassigned. The administrative judge dismissed her appeal as untimely without a showing of due diligence. In her petition for review, the appellant argued that she had no way of knowing how the possible upgrading would influence the Merit Systems Protection Board's (Board) jurisdiction until her former position was actually upgraded.

    Contrary to the administrative judge's finding, the full Board found it unreasonable to expect the appellant to have filed an appeal based on speculative information regarding her position being upgraded prior to her reassignment. Applying its holding in Guzy v. Interior, 64 MSPR, 472 (1994), the Board held that the appellant's duty to exercise due diligence to file this appeal was not triggered until she learned that her former position was actually upgraded. The Board concluded that the appellant filed a constructive demotion appeal within 30 days after learning that her former position had actually been upgraded. The Board, therefore, found good cause for the delayed filing and remanded the appeal to the administrative judge for a jurisdictional hearing. Ellis v. Navy, DC3443961101-B-1, December 1, 1998.

  • The employee filed an untimely appeal alleging that the agency's initial refusals to reinstate her and, as a form of reasonable accommodation, reassign her, constituted a constructive suspension as well as a form of discrimination under the Rehabilitation Act. Finding that the employee failed to establish that the agency initiated her placement on leave and that her inability entitled her to a reasonable accommodation, the administrative judge dismissed her appeal for lack of jurisdiction. Due to the fact that the administrative judge dismissed the appeal on jurisdictional grounds, he did not address the timeliness issue.

    In Popham v. Postal Service, 50 MSPR 193, 197-198 (1991), the full Merit Systems Protection Board (Board) held that only where jurisdiction and timeliness are "inextricably intertwined" must a finding be made on jurisdiction before an appeal may be dismissed as untimely. Therefore, on review, the Board addressed the timeliness issue. When an agency does not expressly decide to suspend an employee for more than 14 days, the time in which the employee may file a timely appeal begins to run when the employee has been absent for more than 14 days [Greek v. Postal Service, DE 0751970555-I-1, (June 9, 1998)].

    In this case, the employee filed an appeal 23 months after the agency denied her request to return to work. The employee's attorney argued he was not informed in a timely manner that the agency reinstated the employee. In addition, the attorney argued that the agency committed harmful error in not advising the employee of her appeal rights. Due to the fact the agency reinstated the employee more than 14 days after it denied the initial request to return to work, the Board held that the appellant's subsequent reinstatement did not affect the Board's jurisdiction or the appellant's right to file an appeal over her constructive suspension claim. Furthermore, the Board held that an employee who is not advised of her appeal rights must still demonstrate due diligence in discovering and pursuing her appeal rights. Accordingly, the Board dismissed the appeal as untimely. Dancy-Butler v. Treasury, AT0752980276-I-1, December 11, 1998.

  • The appellant asserted that his petition was untimely due to mental illness. Without applying its holding in Lacy v. Navy, 78 MSPR 434 (1998), the Board dismissed the appeal as untimely. In Lacy, the Board held when an appellant "states that a reason for a filing delay is physical or mental illness, he must receive explicit information regarding the legal standard for establishing good cause on that basis, and he must be afforded a fair opportunity to submit evidence and argument to show that he met that standard." This decision can be applied to appeals pending at the time of the decision.

    On review, the Board argued that although Lacy applies to pending appeals, the appellant's pending petition was untimely, therefore not entitling him to the new notice procedure set forth in Lacy. The Board also argued, among other things, that the appellant would not have met the Lacy criteria even if he had been given proper notice. The Federal Circuit held that the courts nor the Board can speculate as to whether the appellant could have met the Lacy criteria had he known of them. The Federal Circuit further held that the appellant was entitled to notice of the information he must provide and the standard he must meet when he asserted the reason for untimeliness is mental or physical illness. The Court vacated the Board's decision and remanded it for further proceedings. Smith v. Merit Systems Protection Board, No.98-3341 (Fed. Cir., January 15, 1999).

    Contact: er@opm.gov or (202) 606-2920.

Two-Prong Test Regarding Awards Affecting Management's Rights

  • The Authority, applying its two-prong test for awards affecting management's rights, turned down the agency's exceptions to an award in which the arbitrator, after finding the agency violated a § 7106(b) agreement provision requiring it to give serious consideration to "grade-stagnated" candidates for promotion, ordered that the grievant (who was found to be more qualified than one of the three employees who were selected) be retroactively promoted to a GS-13 position. The Authority said the following about the two-prong test:

    Upon finding that the award affects a management right under section 7106(a), the Authority applies a two-prong test. Under prong I . . . the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II of BEP [Bureau of Engraving and Printing, 53 FLRA No. 21], the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II.

    Finding that the award at issue, in ordering that the grievant be put into a GS-13 Program Analyst position, "affected" management's § 7106(a)(2)(C) right to "select," the Authority applied its two-prong test to determine whether the award was "contrary to" the right to select. Although it did not explicitly find that the contract provision enforced by the arbitrator was a § 7106(b) matter, it noted that there was no contention that the provision was unenforceable and consequently concluded that the award satisfied the requirements of the first prong--i.e., it provided a remedy for a violation of a § 7106(b) contractual provision.

    Turning to the second, "reconstruction," prong, the Authority noted that the arbitrator had determined that the grievant was more qualified than the selectee for at least one of the Program Analyst positions and the grievant would have been selected had she been given the consideration she was entitled to under the terms of the agreement. In FLRA's view, this satisfied the second prong. Hence the remedy didn't violate the right to select. FLRA went on to dismiss the remaining exceptions. Social Security Administration, Woodlawn, Maryland and American Federation of Government Employees, Local 1923, (SSA and AFGE, Local 1923), 0-AR-3072, November 30, 1998, 54 FLRA No. 135.

    Contact: cplmr@opm.gov or (202) 606-2930.

Uniform Services Employment and Reemployment Rights Act

  • The appellant was employed by the Secret Service in a position which prohibited him from continuing to serve as an active member in the U.S. Army Reserves. The agency's authority to designate certain positions as "key" civilian positions and prohibit the participation in the "Ready Reserves" stemmed from 32 CFR § 44.5(10)(b)(2)(I). After the appellant was transferred to inactive status with the Reserves, he filed a complaint with the Department of Labor arguing that his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 had been violated. The Department of Labor found no violation and the appellant then appealed to the Merit Systems Protection Board. The Board found that although the designation as a key employee (and his subsequent transfer to inactive status in the Reserves) was a denial of a benefit of employment under the law, the initial denial had occurred prior to the effective date of the Act.

    On appeal to the U.S. Court of Appeals for the Federal Circuit, the court found that the Board erred in characterizing the prohibition on active service in the Reserves as a benefit of employment stemming from his position with the Secret Service. The court's decision stated, "Membership in the Ready Reserves, in and of itself, is not a benefit of Mr. Thomsen's employment with the Secret Service: USERRA cannot properly be read to convey an affirmative right to serve in the armed forces." Since other arguments regarding the appellant's use of vacation time to serve in the Ready Reserves were raised, the court remanded the case back to the Board to consider these issues and make relevant determinations regarding the timeliness of those allegations. Thomsen v. Department of Treasury, U.S. Court of Appeals for the Federal Circuit, Appeal #98-3255, (Fed.Cir., March 5, 1999).

    Contact: er@opm.gov or (202) 606-2920.

Whistleblower Protection Act

  • The appellant in this case claimed that the agency detailed her to another position in retaliation for whistleblowing (a disclosure to Internal Affairs that an agent in the field had improperly been placed in danger). The Merit Systems Protection Board disagreed with its administrative judge's decision to dismiss the appeal on the basis that the appellant had been able to move out of the detail position at her own request after her husband relocated to another area and thus there could be no corrective action. Here, the Board noted that the Whistleblower Protection Act is a "remedial statute" and that it should be broadly construed in favor of protected employees.

    While conceding that placing the appellant as nearly as possible in the position she would have occupied absent the reprisal and giving her back pay and benefits "may not" be applicable, the Board ruled that consequential damages and the payment of attorney fees and costs remain "viable forms" of corrective action in the matter. Accordingly, the Board remanded the case back to one of its judges to determine whether reprisal took place and, if so, what consequential damages and other corrective action are appropriate. (While the Board's majority did not address this, the Vice Chair pointed that she believes that consequential damages may not be paid in connection with the appellant's claim of emotional distress.) Porter v. Treasury, DA1221980056-W-1, February 2, 1999.

    Contact: er@opm.gov or (202) 606-2920.

Family-Friendly Workplace Advocacy Office

  • Federal Child Care Summit. Affordable, Quality Child Care: An Employer Issue is the theme of this premier summit being held May 12-14, 1999 at the Westin Crown Center in Kansas City, Missouri in response to President Clinton's directive that the Office of Personnel Management host "...a nationwide summit designed to showcase model public and private sector solutions to child care needs." The summit offers four outstanding plenary sessions, concurrent workshops covering 20 different topics, and opportunities to network with other attendees. Presenters include leaders in providing quality child care from the Federal government, academia, non-profit organizations, and the private sector. The keynote speaker will be Dr. Bettye Caldwell of Arkansas Children's Hospital. Topics to be covered include public/private child care models, making child care affordable, quality infant/toddler care, special needs children, supporting fathers in families, fund-raising for child care, security and safety issues, family-friendly workplace arrangements, lactation programs, and latch key kids. The registration fee for the summit is $250. Registration information and a preliminary agenda are available on OPM's website at http://www.gov/events/1999/may12-14.htm.

    Contact: workandfamily@opm.gov or (202) 606-5520.

Current Interventions

Listed below are decisions which currently are pending before a third-party and in which the Office of Personnel Management has intervened, sought reconsideration or judicial review, or filed an amicus curiae brief. Decisions received, as well as other developments since the last report are highlighted in bold. Additional information on each case can be obtained from the Office of Workforce Relations, Employee Relations Branch at er@opm.gov or (202) 606-2920.

1. Vesser v. Office of Personnel Management, AT300A910448-R-1, November 21, 1994.

On December 27, 1994, the Office of Personnel Management sought reconsideration of this decision in which the Board reopened a case after the Federal Circuit had adjudicated it and prescribed a remedy for the appellant. The court had reversed an Office of Personnel Management decision (sustained by the Board) which removed the appellant from the list of candidates for Administrative Law Judge positions because he had retired, and reemployed annuitant status was deemed incompatible with employment as an Administrative Law Judge. The court provided no remedy, and the Office of Personnel Management believes the Board is without authority to amend its decision in the absence of a remand order. Furthermore, even if the Board had the authority to issue its Order, it would constitute an improper remedy. Instead of providing for priority referrals equal to the number of considerations the appellant actually lost, which would be a proper "make whole" remedy, it provides him unlimited priority referral to the detriment of other candidates. Contact: er@opm.gov or (202) 606-2920.

2. White v. Air Force, Docket No. DE1221920491-B-1, August 25, 1994.

The Board refused to consider the Office of Personnel Management's arguments that the appellant in this case did not have a "reasonable belief" that gross misconduct had occurred at his agency and thus was not a whistleblower entitled to all the rights that status provides, including the right to file an individual right of action appeal with the Board. The Board's rejection of the Office's intervention was based on its belief that the Office had not intervened "as soon as practicable" as required by Chapter 77 of the United States Code. The Office believes that the Board erred in this regard. The Court of Appeals for the Federal Circuit granted the Office's request for review of the case. Subsequently, the Court of Appeals granted a request by the Merit Systems Protection Board that the court remand the case back to the Board for further administrative adjudication.

Following remand, the Board on March 10, 1998, affirmed its prior decisions and conclusions on the appeal, stating that the Office's arguments "improperly focus on isolated aspects of our decision while overlooking the cumulative effect of the basis for our decision." Among other things, the Board determined that the appellant's "fear" that gross mismanagement and abuse of authority had taken place was a proper consideration in determining whether the appellant had a "reasonable belief" that such misconduct took place. On June 5, 1998, the Federal Circuit granted a request by the Office of Personnel Management to review the Board's latest decision. The court rejected the employee's argument that the court could not review the matter because it involved the Whistleblower Protection Act rather than a civil service law, rule, or regulation affecting personnel management. The court noted that the issue of disagreement between the Office and the Board is the standard for determining whether an appellant has established that he or she had a reasonable belief that improper activity at the agency occurred. The Office filed its brief with the court on August 31, 1998. Oral arguments in the case were heard by the court on March 3, 1999. Contact: er@opm.gov or (202) 606-2920.

3. DeVall v. Navy, DA0752950794-I-1, February 24, 1997.

The Board applied its earlier decision in White v. Postal Service (when all of an agency's disciplinary charges are not sustained, the Board has the authority to set a reasonable penalty) and ruled that the penalty for sexual harassment and unauthorized use of property (a third and relatively minor charge of wasting time was not sustained) is a 90-day suspension rather than removal. This was done despite an agency official's clear testimony that he removed the employee based on the seriousness of the sexual harassment. The Office of Personnel Management believes that the Merit Systems Protection Board erred as a matter of law in both White and Devall by vesting itself with authority to independently select disciplinary penalties (rather than defer to an agency's judgment). On January 26, 1998, the Board rejected the Office's reconsideration request. The Office and the Department of Justice sought review by the Court of Appeals for the Federal Circuit of the Board's decision.

On April 17, 1998, the Court, noting that the Office and the Board disagree about the deference to be accorded an agency's penalty decision, determined that the matter would have substantial impact on the administration of civil service laws and accordingly granted the Office's petition for review. On July 21, 1998, the Department of Justice and the Office filed their brief in support of the petition to the Federal Circuit, arguing that the Board's decisions in White and Devall impair Federal agencies' rights to remove and discipline employees under Chapter 75 and thus undermine the efficiency of the civil service. Oral arguments in the case were heard by the court on January 6, 1999. Contact: er@opm.gov or (202) 606-2920.

4. Special Counsel v. Merrick Malone and Margie Utley, CB1216940015-T-1 & CB1216940016-T-1, February 9, 1998.

This case involves two employees of the District of Columbia who were found to have violated 5 USC 7324 (the Hatch Act). Prior to a decision by the Merit Systems Protection Board, both employees resigned, and the Office of Special Counsel requested that they be debarred from future employment with the District of Columbia Government. At issue here is whether the applicable statute prevents the Merit Systems Protection Board from debarring employees who violate the Hatch Act and therefore limits the penalty to either removal or suspension. In a February 9, 1998, decision, the Merit Systems Protection Board rejected the recommended decision of its Chief Administrative Law Judge who had ordered that the two employees be debarred for 10 and 5 years respectively. The Board held, contrary to the meaning given this provision for nearly 50 years, that it lacked authority to order the now former employees debarred from future employment. Since the employees had resigned and the Board believed there was no other penalty that could be imposed, it determined that the case was moot and must be dismissed.

The Office of Personnel Management has sought reconsideration of this decision, arguing that the Board erred in its analysis of the applicable legislative history and prior case law. Decisions of both the Comptroller General and the former Civil Service Commission held that debarment was authorized. Without the potential penalty of debarment, individuals who violate the Hatch Act could avoid serious punishment by simply resigning and then seeking immediate reemployment. Contact: er@opm.gov or (202) 606-2920.

5. Joyce v. Department of the Air Force, PH0752950085-B-1, April 9, 1998.

On June 26, 1998, the Office of Personnel Management (OPM) intervened in a case involving an award of attorney fees to an appellant who refused to come to work after being ordered to do so, arguing that a lack of accommodation made it unsafe. On appeal, he argued that he was either constructively suspended or removed from his position. Prior to an MSPB hearing, the agency provided reasonable accommodation and gave the appellant back pay for the period of time he had refused to work. The administrative judge (AJ) thereafter dismissed the appeal. The AJ then dismissed the appellant's request for attorney fees, finding that the Board lacked jurisdiction over the matter since the appellant had voluntarily absented himself from work. The full Board reversed the initial decision and held that: (1) it need not make a determination of jurisdiction in order to award fees but need only determine whether an appellant has set forth a prima facie case of jurisdiction, and (2) it need not analyze the case to determine whether an award of fees is warranted "in the interest of justice," but instead established a rebuttable presumption that fees are warranted in cases where the appellant has established a prima facie case of jurisdiction and the agency unilaterally rescinds its action.

OPM sought intervention of this case, arguing that the Board exceeded its authority and ignored the requirement in 5 U.S.C. 1204 (a), which provides that the Board issue decisions only in those cases in which it has jurisdiction. In Joyce, the Board held that no jurisdictional determination was necessary. The Board further ignored the requirement in 5 U.S.C. 7701 that it can award fees only after a finding that the employee was a prevailing party and that such an award would be in the interest of justice. Instead, it shifted the burden to the agency to demonstrate that fees were not warranted in the interest of justice. Contact: er@opm.gov or (202) 606-2920.

Topical Overview

FAMILY-FRIENDLY WORKPLACE ADVOCACY OFFICE OPENS

  • The latest initiative by OPM to create a family-friendly work environment for Federal employees was the formal establishment of the Family-Friendly Workplace Advocacy Office (FFWAO) on March 1, 1999, in response to a Congressional mandate. The FFWAO responds to employee concerns and suggestions about the implementation of family-friendly programs such as alternative work schedules, telecommuting and leave programs, as well as child and elder care issues. The FFWAO staff continues the work of the Work/Life Programs Center in providing Government-wide leadership and technical assistance to agencies by aggressively supporting the use of comprehensive family-friendly programs. In addition, the FFWAO identifies administrative or regulatory obstacles to implementing family-friendly policies and practices, and proposes regulatory or legislative changes where needed.

    The opening of the FFWAO followed the August 1998 delivery to Congress of a comprehensive OPM report reviewing Federal family-friendly work arrangements. Data compiled from the survey of agency personnel offices and focus groups (from a broad sample of employees, managers, and union representatives) indicated that agencies have done much to create and support a family-friendly work environment. However, obstacles including poor communication between employees and managers, inconsistency in participation, and management resistance to change indicated the need to address barriers to the implementation of existing work and family programs. The FFWAO provides the appropriate response to these needs.

    The FFWAO offers resources such as the Work and Family Speakers Bureau, the OPM Director's Award for outstanding work and family programs, the Interagency Adult Dependent Care Working Group, child support enforcement activities, father-friendly initiatives, the Work and Family Clearinghouse, and numerous publications for individuals and agencies. One of the first major initiatives of the new FFWAO will be the sponsorship of a nationwide child care summit to be held in Kansas City, Missouri on May 12-14, 1999. All aspects of model child care arrangements and parental involvement in work-life issues will be featured at the summit.

  • Recent efforts by OPM in promoting a family-friendly work environment include the publication of the training handbook Work and Family Issues: a Module for Supervisors and Managers and providing technical assistance to Members of Congress regarding the proposal of legislation removing limitations on the use of appropriated funds for costs related to child care centers. The establishment of the FFWAO to ensure a family-friendly work environment supports OPM's goal of strengthening the Federal workforce by encouraging employee commitment, productivity, and well-being.

  • Contact the FFWAO in any of the following ways:

    By Mail at:

    Family-Friendly Workplace Advocacy Office
    U.S. Office of Personnel Management
    1900 E Street, NW, Room 7315
    Washington DC 20415

    By Phone at: (202) 606-5520
    By Fax at: (202) 606-2091
    Via Email at: workandfamily@opm.gov
    Or Website at: opm.gov/wrkfam

Index of Cases

Agencies having general questions concerning this publication, including suggestions for improvement, are encouraged to call Callie Chandler or Ken Bates on (202) 606-2920.

Other questions or comments may be mailed to the Employee Relations Branch, U.S. Office of Personnel Management, Room 7425, Theodore Roosevelt Building, 1900 E Street, NW., Washington, DC 20415-2000. You may call us at (202) 606-2920; fax (202) 606-0967; or email er@opm.gov.

Created 24 April 2000