Who Decides? Due Process May Be Due For A Redo

By on May 6, 2014 in Current Events with 56 Comments

More bun than beef

I have been thinking a lot lately about EEO complaints among Federal employees – especially after learning that fewer than 3% of the cases that were litigated were lost by agencies.  The Equal Employment Opportunity Commission (EEOC) tried to put a spin on this disturbing statistic by noting that more than one-fourth of cases are settled and “Many of these resolutions contained favorable outcomes for the complainant, including monetary and non-monetary benefits.”

Those of us who have mediated EEO cases and/or represented agencies in settlement conferences know that the costs of a contractor led investigation and/or EEOC hearing may be the only reason for settlement.  In good number of the cases I have mediated, a prima facie case is not at all apparent; however, the agency wants the complaint to go away rather than litigate it.  …and, of course, settlements come from weak cases/witnesses as well.

I believe that Equal Employment Opportunity is still relevant and important within the Federal sector.  There is work ahead of us.  By the same token, awareness of discrimination issues in government is higher than most of the private sector.  So why are EEO complaints so much more likely to be filed by federal employees?  From the vantage point of one who promotes EEO, the number of meritless complaints represents a tremendous expense to the Federal government.

“I’m the decider”

In the vast majority of Federal agencies, decisions regarding disciplinary and performance-based actions rest with senior managers.  The more serious the discipline – the higher the level of the manager who makes the decision.  In some agencies (like the US Forest Service) a third/fourth-level manager is required to sign Letters of Reprimand which will be shredded in 1-3 years anyway.  I discussed this escalation of decision-making in a long-ago article titled Let the Supervisor Sign.

Disciplinary/performance-based actions carry with them a high probability of grievances or discrimination complaints from affected employees.  If the targeted employee can’t find their own way to a union rep or EEO counselor, Federal disciplinary memos conclude with instructions on how to file a grievance or complaint.  Few who receive reprimands, suspensions, or worse respond with “Thanks.  I needed that!”

For decades, I’ve heard complaints from high level management officials concerning the amount of time they devote to minor offenses/complaints.  While many leaders need to be better informed regarding conditions of employment within their own organizations, those complaining about their disciplinary sanctions and/or adverse performance ratings don’t constitute a representative sample.  Since so many complaints are without merit, deciding on one after another may adversely affect the perceptions of the leaders who endure these hearings and appeals.

Do you really think we’re impulsive?

After decades of toil in the labor/employee relations vineyard, I have consistently found that discipline and unacceptable ratings are well considered before being proposed and/or decided.   Supervisors go to HR, upper management, and attorneys who stew over risk and syntax before an employee ever receives the bad news.  We all know that discipline is most effective when it is meted out swiftly (imagine being punished for kicking your brother… three weeks after his wailing began) yet the wheels of internal Federal justice grind slowly.

Given the excessive deliberation in so many agencies, there isn’t much to review or decide when the case arrives in an executive’s inbox.  Some readers will misunderstand me here.  I know that managers often play favorites.  In some cases they take aim at those they dislike – without sufficient cause.  Practically speaking, however, it is unlikely that layers of management and HR specialists have it all wrong.  The odds are better that they have waited too long to deal with the mess they are now acting upon.

When disciplinary or performance-based proposal/decision letters finally get signed by the person least involved in the case, every “i” and “t” has been considered.  Is it necessary to have someone at an executive level adding their John Hancock at the end of such a long assembly line?

Burdening the overburdened

I recently read an article citing four Merit Systems Protection Board (MSPB) cases where appellant attorney fees had to be paid by the losing agency to the tune of ~$200,000 per loss.  Each involved a procedural due process error.  Administrative judges found that the deciding officials in each case considered a tidbit of information that wasn’t clearly laid out in the proposal letter to the employee.  That’s a steep price to pay for a technical oversight.  The price tag in attorney fees alone (more than $800,000 for these four cases combined) is staggering.

For those who don’t study Federal HR case law, procedural due process is required when suspending, demoting or removing a permanent Federal employee, assuming they have completed their probationary period.  A website devoted to legal terminology tells us, “…the principle of procedural due process, if a person is deprived of life, liberty or property, s/he is entitled to adequate notice, hearing, counsel, and a neutral judge.”

In most agencies, there is a proposing official and a separate deciding official.  Human resources specialists or attorneys commonly draft the paperwork for their signatures and (supposedly) leave the decision-making to those most experienced in leadership.  It has been suggested that HR/legal offices be more thorough and meticulous in preparing deciding officials regarding this now-common reason for reversal of appeals.  I have another idea.

Letting the expert exercise expertise

As I finished the article concerning the cost of procedural due process errors, my mind jumped back 15-20 years to a Director of Employee Relations I met in my travels.  She rocked my understanding of due process procedures by telling me that she signed both proposal and decision letters herself… as well as hearing the employee’s response to the listed charges.  At that point my head exploded.  I advised her that such decisions were the province of line managers.  She responded with words I’ve used myself on so many occasions – “Where does it say that?”

I was dumbfounded.  I reviewed disciplinary law (5 USC Chapter 75) and regulations (5 CFR 752).  Neither specifies that those proposing a suspension, demotion or removal; or those hearing an employee’s reply to such a notice; nor the person deciding the matter should be line managers, no less the top dogs in the organization.  Regarding performance-based actions, the law (5USC4303) specifies the unacceptable employee is entitled to, “…a written decision which… unless proposed by the head of the agency, has been concurred in by an employee who is in a higher position than the employee who proposed the action.”

It was obvious that she was meticulous, well-informed, and aware of all procedural rights of employees.  She alleged that she had never lost a case that came before the Merit Systems Protection Board or Equal Employment Opportunity Commission.  …and there was never a hint of a procedural irregularity in her paperwork or testimony.

Supervisors and managers were required to document and offer up opinions and assessments.  She, however, took the monkey off the backs of her high level officials and placed it squarely on her own shoulders.  She was accustomed to testimony and (given her personality) probably a formidable witness.

The buck stops… where?!

Given the “cost of doing business” associated with progressive discipline and performance-based actions (in terms of subsequent grievances, complaints, investigations, testimony, technical reversals, etc.) why expose those whose time is of greatest value to such procedurally demanding matters.  Their time would be better invested elsewhere.

If the law allows those with the greatest expertise to sign paperwork that is highly technical and susceptible to challenges, why not have lawyers sign it?  In their stead, how about the folks in HR who specialize in labor and employee relations?  If investigations and grievances ensue, these are the people who are most likely to articulate their thought processes and rationale in ways that will prove acceptable to judges, boards and commissions.

In no way am I suggesting that such technical experts run your agency or initiate actions to sanction employees who prove incompetent or irresponsible.  I just wonder why they shouldn’t shield their clients from the distractions associated with administrative litigation – much of which has no significance beyond pushback.

If this suggestion is summarily rejected in your agency, I have an alternative.  Designate just a few senior managers to be proposing and deciding officials within your agency.  They don’t even have to work in St. Louis or Atlanta to sign documents relating to employees in those locales.  They can have video conferences with employees and their representatives, assess evidence and arguments, and render justice.  These managers would develop expertise in weathering the all-too-frequent storms of EEO complaints and grievances that inevitably result from adverse personnel actions.  Agencies will be less likely to settle winning cases and valued leaders might have more time to do what they are primarily paid to do.

I doubt that attorneys and HR specialists will greet this idea with Hosannas; however, if this article were to reach the eyes of agency leaders, they might agree to experiment with such changes to protocol.  I hope that the vast majority of active Feds, whose workplace issues deserve more attention from senior management, will agree as well.

© 2016 Robbie Kunreuther. All rights reserved. This article may not be reproduced without express written consent from Robbie Kunreuther.

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About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to trainlngfeds.com.

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