ksaldarini@govexec.com
Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.
Poor Judge-ment
It's common advice not to "step on any toes" in the workplace. As the following case demonstrates, it's also a good idea not to slam doors in your co-workers' faces.
An administrative law judge at the Social Security Administration's New Haven, Conn., hearing office, Rokki Knee Carr, was reprimanded for disruptive behavior and inappropriate conduct more than once. Eventually, the agency sought her removal. The law requires authorization from the Merit Systems Protection Board for removal of an administrative law judge.
As such, MSPB reviewed the four charges against Carr: reckless disregard for personal safety, persistent use of vulgar and profane language, demeaning comments, sexual harassment and ridicule, and interference with efficient and effective agency operations.
Upon review, MSPB authorized Carr's removal, which she then appealed. But she only had a technical legal problem with the charge that she acted with reckless disregard for personal safety. Carr argued that purposely slamming her office door while a coworker was standing in the doorway shouldn't be considered reckless disregard. MSPB sustained the charge.
Carr's other argument was that the dismissal was a retaliation for whistleblowing. In 1991, when she first started at the New Haven office, Carr disclosed what she believed were violations of regulations and examples of gross misconduct to SSA authorities.
She argued that, had she not blown the whistle on her co-workers at the New Haven office, they would not have retaliated against her by reporting her wild behavior. Their complaints, in turn, led SSA to seek her removal.
But upon review, MSPB determined that SSA would have fired her whether or not she had made protected disclosures.
Lesson: Don't judge a judge by her title.
Rokki Knee Carr v. Social Security Administration, Merit Systems Protection Board (98-3244), July 30, 1999.
Avoiding the Crucible
Four female Navy employees got creeped out when a male co-worker began his own version of the Salem witch hunt, yelling and screaming at one of the women and writing letters suggesting that the women were "working with the devil." Fearing that the man considered himself "an avenging angel" who would carry out judgment on them, the women, on Feb. 25, 1998, sought the assistance of the agency's Employee Assistance Program counselor, who advised them not to go back to their work stations. They didn't go back, and apparently three of them haven't been back since.
Their case arrived at the Merit Systems Protection Board with the question, Should their voluntary exodus be considered an involuntary action caused by the Navy's inability to fix intolerable working conditions? No employee is entitled to leave work and remain absent without explanation, the board noted, but if a supervisor is aware of a poor work environment and doesn't do anything to fix it, then the agency should be held responsible.
Leaving the employees in health-threatening situations is not permissible, the board concluded, and a reasonable person could see why the women didn't go back to work.
One of the board members dissented, however. MSPB Vice Chairwoman Beth Slavet said an employee should not be allowed to just walk out of work and then seek protection under the MSPB. "Nothing in the record would support a finding that these appellants in fact had no alternative to absenting themselves from work, such as filing a grievance over their working conditions," Slavet said. But the majority's conclusion ruled the day.
Lesson: Try to make your employees feel safe at work, otherwise they may just stop coming.
Peoples, et al. v. Navy (98-0361), Merit Systems Protection Board, August 6, 1999.
Level Playing Field
In the great sport of federal labor-management relations, there are few more riveting competitions than the negotiations over the number of levels in an employee appraisal system. Traditionally, federal agencies have used five-level rating systems to evaluate employees, but in recent years the systems have been reduced to as few as two levels, and many an agency-union engagement over removing or adding a level have left spectators spellbound.
One of the most exciting matches over evaluation systems levels was at the Energy Department's headquarters. Earlier this year the department and the National Treasury Employees Union concluded a gripping three-year derby: they agreed to turn HQ's five-level system into a four-level system.
But now there may be fewer such tournaments. The Federal Labor Relations Authority recently held that the number of levels in a performance appraisal system is not negotiable; it is a decision management has the right to decide without union involvement. The FLRA based its decision on a case involving the General Services Administration and the American Federation of Government Employees. When the union tried to get a game going with a proposal to create a four-level system, GSA said it didn't want to play, arguing that the rules of federal labor-management don't require it. The union cried foul, noting that Vice President Al Gore's National Performance Review and the 1993 Executive Order 12871 called on agencies to negotiate over such issues. No dice, the FLRA said rating levels "concern how an agency evaluates the manner in which its employees perform the work to which they have been assigned."
Lesson: Managers don't have to let unions join in all the rating level games.
AFGE v. GSA, Federal Labor Relations Authority (55 FLRA No. 73), April 30, 1999.