Tuesday, December 22, 2015

Curing Improper Performance Standards for Federal Employees

When Congress totally revised the U.S. Code governing federal employees in 1979, one of the items on its agenda was to make it easier to remove “poor performers,” based on anecdotal examples of agencies lamenting their inability to discipline such employees. Towards this end, Congress created a new Chapter in Title 5 of the Code, Chapter 43, specifically governing performance. While agencies typically are required to support by preponderance of the evidence a decision to discipline an employee for misconduct, agencies are required to support by substantial evidence – a much lower burden of proof – a decision to remove or demote an employee for unsatisfactory performance. 

The lower burden of proof, however, comes at a price. In order to invoke Chapter 43, agencies are required to prove that they have complied with several statutory requirements, which essentially demand that agencies demonstrate they have clearly told employees the metrics by which performance will be measured, and that they have provided the employees with a reasonable opportunity to demonstrate they can perform satisfactorily. If the agency cannot show it has met these requirements, it cannot prevail.

The MSPB has made clear that in an appeal of a performance-based removal under Chapter 43, it must determine that valid performance standards were used and communicated to the employee prior to considering performance deficiencies. Van Pritchard v. Department of Defense, 117 M.S.P.R. 88, ¶ 19 (2011). In June 2015, the MSPB reaffirmed this principle when it  reversed a performance-based removal because the Agency failed to show that it had developed or communicated valid performance standards to the employee. Pace v. Department of Army, 2015 WL 3630885 (MSPB CH-0432-14-0335-I-1), ¶ 13 (June, 2015). The Pace decision is non-precedential, which means the Board does not see it breaking new ground (Pace, note 1), but it nevertheless provides some useful guidance on the components of a valid performance standard.
To remove an employee for performance under Chapter 43 an Agency must first show that  (1) it has an OPM-approved appraisal system; (2) it has communicated to the employee the performance standards and critical elements of his position; (3)  the performance standards are valid under 5 U.S.C. 4302(b)(1); (4) it warned the employee of the inadequacy of the employee’s performance and gave him/her a reasonable opportunity to improve; and (5) the employee’s performance remained  unacceptable in at least one critical element. Pace, ¶ 13; White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013).  

For performance standards to be “valid” they must “allow for reasonably accurate measurement of performance and protect employees against arbitrary treatment.” Wilson v. Department of Health and Human Services, 770 F.2d 1048, 1052 (Fed. Cir. 1985); see 5 U.S.C. § 4302(b)(1). Critically, however, an employee’s performance does not warrant removal if it is “satisfactory”, which includes “minimally” or “marginally” satisfactory. Accordingly, in order for an employee to have a “reasonable opportunity to improve,” the agency must provide the employee with a Performance Improvement Plan (PIP) which communicates “the standards he must meet in order to be evaluated as demonstrating performance sufficient for retention, i.e., minimally successful, or needs improvement.” Donaldson v. Department of Labor, 27 M.S.P.R. 293, 301 (1985).

The Agency may communicate these minimum standards in the PIP itself or through a memorandum or other communications. Donaldson at 299. The written standards may be supplemented with subsequent communications with the employee. Wilson at 1056; Moltzen v. Department of Labor, 504 Fed.Appx. 912, 916 (Fed. Cir. 2013) (affirming Moltzen v. Department of Labor, 2012 WL 11881192 (M.S.P.B) *2  (non-precedential)).

In Pace, the MSPB refused to sustain the removal both because the Army had failed to state the performance standards at the minimum level needed for the employee to retain his job and because it had failed to supplement the standards in subsequent communications. Pace, ¶ ¶ 1, 13 (2015). The Army’s four-tiered performance system rated employees for each objective with the standards of “Excellence,” “Success,” Needs Improvement,” and “Fails.” Id. ¶ 5. The written standards for the employee’s performance objectives were written at the “Success” level and provided no information as to the performance needed for “Needs Improvement.” Id. ¶ 5. For this reason, the MSPB found the performance standards used to remove Mr. Pace could not sustain his removal. Id.; see Donaldson at 299 (performance standards invalid because employee “was consistently told what was required for a satisfactory rating only, and not for the “minimally satisfactory” or “needs improvement” level”).

The Board in Pace next considered whether the agency had cured through subsequent communications its failure to state the minimum standards. Pace, ¶ ¶ 6-12; see Henderson v. Nat’l Aeron. & Space Admin., 116 M.S.P.R. 96, ¶ ¶ 16, 18; Donaldson at 299 (“[W]e hold here than an agency may inform an employee of his requirements other than in the PIP itself”).  In Moltzen, the Federal Circuit affirmed that “Mr. Moltzen’s performance plan, ‘in light of the supervisor’s efforts at instruction, [was] clear, precise, and specific enough to be ‘objective.’” Moltzen, 504 Fed. Appx. at 916.

In Pace, however, the Agency’s efforts failed to cure the deficiencies of the performance standards. Pace, ¶¶ 6-12. Neither in the PIP nor in subsequent communications did the Agency identify the level of performance necessary for Mr. Pace to avoid removal; indeed, the Agency even failed to  notify Mr. Pace that to avoid removal he did not have to achieve at the “fully successful” level but only at the “needs improvement” level.  Id.

A subsequent memorandum provided to Mr. Pace during the PIP period detailed his performance and concluded that although he had been given many opportunities to perform at the “fully successful” level, he had instead demonstrated unacceptable performance. Id. The Board concluded that, “although the agency informed the appellant of the individual tasks he needed to accomplish during the PIP, it failed to adequately explain to the appellant a sufficiently ‘firm benchmark’ for which he should aim his performance.” Id. at ¶ ¶ 26.

In the space between Moltzen and Pace, it seems, lies the line dividing performance standards that are, or are not, rendered valid by sufficient supplementary communication.

For more information about this post or how you can protect your rights, please contact Mary Kuntz.

Wednesday, December 16, 2015

Can’t You Accommodate Me Like You’ve Done Before?

Employers should tread carefully before withdrawing formal or “informal” accommodations from qualified employees with disabilities. In a string of recent decisions, the EEOC and several federal courts have held that employers violate the Americans with Disabilities Act (ADA)1 when they withdraw an accommodation that was successfully provided to a disabled employee for some period of time.2

Under the ADA, employers are required to provide reasonable accommodations—provide assistance to or make changes to a position or workplace—that enable qualified3 employees with disabilities to perform their job, unless doing so would cause an undue hardship. In this context, what is the outcome when an employer accommodates an employee with a disability, but then withdraws the accommodation, claiming that the accommodation was “unreasonable?” This often occurs when a new supervisor comes along and disagrees with the accommodation, or the employer concludes that the employee’s need for an accommodation is permanent. Ultimately, the issue in these cases is whether withdrawing an accommodation is reasonable under the ADA. Addressing this issue, the EEOC and a number of federal courts have recently precluded employers from asserting that an accommodation was no longer reasonable or that it caused an undue hardship when it had been successfully provided for some period of time.

In De John v. USPS, for example, a postal employee developed thrombophlebitis, which substantially limited his ability to stand. As an accommodation, the agency authorized the employee’s use of a chair, which enabled him to perform his job. After a year, a new manager removed the chair due to “safety hazards.” The Commission found, however, that because the chair had been used for over a year without a safety incident, the discontinuation of an effective accommodation constituted an unreasonable failure to accommodate.

Similarly, in Isbell v. John Crane, Inc., the district court found that a new supervisor’s withdrawal of a two year long accommodation and refusal to make changes to the hours policy was unlawful. In Isbell, the employer allowed an employee who suffered from ADD and bipolar disorder to arrive to work late (10 a.m.) because her medications took some time to take effect. Then a new supervisor came along and inexplicably withdrew her accommodation and also required the employee to report for work at 8:30 a.m. like everyone else. Although the employee submitted further documentation and a new request for her previous accommodation, the employer refused and ultimately terminated her for attendance violations.

In Isbell, the court noted that uniformity of treatment is precisely what the underlying purpose of the ADA rejects, and that the employer failed to provide an adequate reason for subjecting the employee to a one-size-fits-all hours policy. More importantly, the court highlighted that the plaintiff had been receiving the accommodation of a flexible start time for more than two years without difficulty. According to the court, because the employer had previously provided the accommodation of a later start time without any problems, it could not legitimately state that punctuality was an essential function of the job or that a later start time caused the employer an undue hardship. Therefore, the employer’s sudden replacement of the accommodation with a more onerous schedule constituted an unreasonable failure to accommodate.

In another case, Meinen v. Godfrey Brake Service & Supply, Inc., the district court held that an employer could not claim undue hardship in continuing to employ the plaintiff on a part-time basis, as it had done for 18 months. There, the plaintiff suffered from multiple sclerosis, and could only work up to two hours per day, three days per week. The employer allowed plaintiff to work at the parts counter on this part time basis for 18 months, until it terminated him. During this time, the employer created another part-time position to fill the need, and even held open a full time position for the plaintiff in anticipation of him returning to work full time. Noting that it is the employer’s burden to show undue hardship, the court concluded that the employer could not meet that burden under these circumstances.

Similarly, the Seventh Circuit in Miller v. Illinois Department of Transportation held that an employer was required to continue providing an accommodation it had informally provided in the past. There, the employee worked on a bridge crew but had an extreme fear of heights in unsecured environments, which he estimated kept him from performing less than 3% of his tasks. For years, the employer informally accommodated him by allowing other members of the bridge crew to handle those tasks. The employer also regularly allowed bridge team members to swap tasks according to their own limitations. One day, however, the employee was required to walk a bridge beam and suffered a panic attack, resulting in his hospitalization. Later, the employee filed a request for an accommodation that he not be required to work on bridge beams or other unsecured areas at heights above 25 feet, which was denied. After the district court granted summary judgment for the employer, the Seventh Circuit reversed and remanded, finding that Miller’s accommodation request did not require the employer to do anything it was not already doing, and that the jury should be able to consider the employer’s past flexibility in determining whether the accommodation request was reasonable. On remand, the jury found in favor of the plaintiff.

In sum, these cases show that employers may be exposed to liability under the ADA when an accommodation is provided for a period of time, but is suddenly withdrawn with no effective alternative in its place. Significantly, these cases also represent a change in case law under the ADA, particularly given that a number of courts—including the Seventh Circuit—previously held that no inference of reasonableness should be drawn from previously provided accommodations.4 It remains to be seen what future impact these cases will have, but they are nonetheless significant.

This blog was written by Alex Kutrolli.

[1] The anti-discrimination provisions of the ADA were incorporated into the Rehabilitation Act of 1973; therefore, this article is equally applicable to federal employees whose disability rights are governed by the Rehab Act.
[2] The accommodations discussed herein were all provided for at least one year, however, the EEOC and federal courts have not specifically discussed what length of time would qualify to preclude an employer from asserting that the previously provided accommodation was unreasonable or caused an undue hardship.
[3] A qualified individual or employee is one who holds the necessary degrees, skills and experience for the job, and who can perform the essential functions of the job, with or without an accommodation.
[4]The Seventh Circuit in Vande Zande v. State of Wisconsin Dep’t of Admin. previously held that “[an] employer that bends over backwards to accommodate a disabled worker…must not be punished for its generosity by being deemed to have conceded the reasonableness of so far-reaching an accommodation.”

Wednesday, December 9, 2015

Call to Action – Following up on Kellie Greene

The CBS news story last week has sparked new interest in whether the Peace Corps adequately protects volunteers who face assaults. Now, a group of returned Peace Corps volunteers has launched a Petition seeking Kellie Greene’s immediate reinstatement as Director of the Office of Victims Assistance. Mary Kate Shannon says she started this campaign to show her support of Kellie Greene and to provide a place for those who benefited from Kellie’s vigorous advocacy to show their support. The Petition states:
Kellie Greene has proven herself to be a fierce advocate for Peace Corps Volunteers who become victims of crimes during their Peace Corps Service. She holds Peace Corps to a incredibly high but necessary standard. She has ushered in great change within Peace Corps.
In addition to CBS’s story, ABC recently covered some of the repercussions Kellie Greene suffered as a result of her push for change at the Peace Corps. Kellie Greene’s Whistleblower Protection Act case remains pending at the Office of Special Counsel. You can read our prior post here.

Written by Nina Ren.

Wednesday, December 2, 2015

NY Times story on NWC’s settlement of NLRB cases

Today, the New York Times broke news of a settlement that followed after a prominent whistleblower organization and its affiliated law firm were accused of retaliating against staff for whistleblowing. That story is about me and my former co-worker Lindsey Williams. We had filed a labor Board complaint against the National Whistleblowers Center (NWC) after they fired us in 2012 for starting to organize a staff union.

Our case was actually against three entities as Joint Employers: the National Whistleblowers Center (NWC), the National Whistleblowers Legal Defense and Education Fund, and Kohn, Kohn & Colapinto, LLP (KKC). As a non-profit, NWC allowed the organization to apply for grants and receive tax-deductible contributions. As a private law firm, KKC allowed the organization to charge fees to clients and give the partners a personal ownership interest. The Fund acted as an intermediary and handled payroll and health insurance. Williams and I had worked for them from 2008 to 2012. At NWC, she was the Communications Director and I was the Legal Director. All three entities participated in our settlement.

They fired Williams, me and three other co-workers on November 5, 2012, after we announced our plan to organize a staff union. Organizing a union is legally protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”). We saw a union as a way to achieve transparency of the Joint Employer’s finances after the announcement of the $104 million award granted to one of our clients, UBS whistleblower Bradley Birkenfeld. At a press conference, Stephen Kohn announced that the organization received a portion of this award for attorney’s fees, but he did not say how much. The Joint Employer told the long time staff that despite our hard work and the influx of cash from the historic whistleblower award, the employer was unable to afford the raises it had promised earlier. These raises were promised because we had been working at very low salaries – and sometimes, without any salary at all. After we questioned the veracity of this claimed cashflow problem, the Joint Employer fired all five employees claiming lack of funds.

The Joint Employer offered the staff severance agreements. Williams and I refused to sign the agreement because it included a broad gag clause that would have restrained our freedom to speak about what happened to us. We believed the clause violated the NLRA and was against the stated mission of the National Whistleblowers Center.

So, Williams and I filed unfair labor practice charges with the National Labor Relations Board (“NLRB”) in January 2013. The NLRB investigated the charges and, in October 2014, found enough evidence to proceed with prosecution against the Joint Employer for wrongful termination. We reached a settlement weeks before the trial was to begin in January 2015.

As part of the settlement approved by the NLRB, the Joint Employer agreed to remove all mention of Williams’ and my terminations from their records and posted a notice to all employees that they would not be retaliated against for exercising their legal rights to work collectively to improve their wages and working conditions. Williams and I are prohibited from disclosing the financial terms of the settlement, but we can say that the case was settled successfully.

Visit fearinghonesty.org for more details about the case, including a summary of the facts, copies of the proposed unsigned severance agreements, the unfair labor practice charges, briefs filed in the case, the notice posting required by the settlement and a redacted copy of the final settlement agreement.

I immediately recognized the irony of getting fired by the National Whistleblowers Center. It is unfortunate when any employer chooses retaliation instead of responding to an employee's concern in a legal and ethical manner. All employers, and especially NWC, should follow the law and treat their employees with respect. Still, I appreciate the advocacy I accomplished as Legal Director of the National Whistleblowers Center, and the change brought me to a law firm with a better record for supporting independent professional judgment – Kalijarvi, Chuzi, Newman & Fitch. Our case exposes the risks all employees face when blowing the whistle and the need for comprehensive whistleblower protections.

The NY Times story quotes me as saying, “I recognized that I could wear it [my termination] as a badge of honor.” While this quote is correct, some context would add more meaning. I said this in response to a question of how my experience of getting fired is different from what my clients experience. For most of my clients, the experience of getting fired is embarrassing, distressing and devastating. As a whistleblower advocate, however, getting fired for raising concerns has been a “badge of honor.”

Williams said the following about her experience:
I thought I understood what whistleblowers felt when they were fired for doing the right thing, but this experience has put it into a whole new perspective for me. If you would have told me that I would be fired from the National Whistleblowers Center for standing up for myself and my coworkers, I would have told you that you were crazy. It just goes to show you that any worker can have his or her legal rights violated. I was stunned when the job I loved vanished with a voicemail. I am not sure that I will ever forget that feeling or how I felt in the aftermath. In fact, I hope that I don’t forget. There is a difference between intellectually knowing that whistleblowers suffer emotionally as well as financially, and actually knowing from personal experience what that worker is going through. I am a better advocate now because of my personal experience and I would not hesitate to raise my concerns all over again.
Williams and I are grateful that the NLRB decided to proceed with prosecution of our case. The NLRB staff was instrumental in facilitating the settlement. Still, the case was affected by the limited remedies under the NLRA. The law prevents workers from recovering attorneys’ fees and compensatory damages arising from retaliation. Last year, Representative Keith Ellison proposed the Employee Empowerment Act (H.R. 5280), a bill that would improve remedies for workers suffering from retaliation. The bill failed to pass before the end of the session. Williams and I are asking the Board of Directors of the National Whistleblowers Center (NWC) to publicly state that gag clauses in severance agreements or other employment agreements are against the core mission of the organization, violate the NLRA, and therefore will not be used or enforced by the NWC in the future. Members of the public can sign the coworkers.org petition to the Board of Directors online here.

Our experience has only served to strengthen our commitment to fighting for and protecting workers. After seven months of unemployment, I joined the law firm of Kalijarvi, Chuzi, Newman & Fitch where I continue to represent whistleblowers as a partner in the firm. After eleven months of unemployment, Williams joined the Strategic Research and Campaigns Department at the International Brotherhood of Teamsters as a Campaign Communications and New Media Specialist. In December 2014, Williams started a new position as Communications Director for the Pittsburgh Federation of Teachers.

I appreciate the work of our attorney, Larry Sherman, who represented us during our appeal and settlement negotiations.

For more information about this post or how you can protect your rights, please contact Richard Renner.