EEOC Executive Leadership Conference
Bill Bransford
Shaw, Bransford & Roth, PC
www.shawbransford.com
T
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MISSION
POWER
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STRUCTURE
RESOURCES
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…an agency may take an action
(suspension of more than 14 days,
demotion or removal)
Against an employee
(non-probationary)
Only for such cause as will promote
the efficiency of the service
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 Elastic
nexus
concept encompassing
 Showing
“Efficiency of the Service”
is part of the agency’s burden of
proof in adverse action cases
4
In dealing with any problem
employee, supervisors should focus
on the question of why correcting the
problem will make the agency more
efficient and/or make it easier to
accomplish the mission.
5
Nexus can be shown in either
on duty misconduct
OR
off-duty misconduct
IF
there is a link to the agency’s
mission and/or efficiency.
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Will file grievance or EEO complaint
Too much time and documentation
Process is too complicated
Have to overcome past practices
Problem will go away if you ignore it
Lack support from upper management
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1.
Merit Systems Protection Board
(under DHS system, streamlined
process at MSPB)
2.
EEO Complaints
3.
Union Grievances
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Initiate Appeal at MSPB within 30 Days

Discovery

Hearing

Decision

Appeal to full Board (PFR)

Decision

Appeal to Court of Appeals for the Federal
Circuit (PFR)
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Agency has burden of proof
(except on affirmative defenses)


To provide evidence to support reasons for
action
To rebut employee’s affirmative defenses
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EEO Counselor contact within 45 Days

EEO Counseling for 30-90 days

Formal complaint filed if unresolved

Agency investigates within 180 days


Employee
elects
forum 
Court
Final Agency Decision



EEOC
Civil Action Filed
Court
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
Discovery
US Attorneys Answer


Pre-hearing settlement
Discovery

Pre-hearing conference


Settlement Negotiations
Hearing


Pre-Trial
Decision


Trial by Jury
Appeal to Commission


Appeal to higher court
Court
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Employee Protected
Categories
1. Race
2. Color
3. Gender
4. National Origin
5. Religion
6. Age (40 or older)
7. Disabilities
8. Participating in
EEO process
9. Opposing
discrimination
Categories Not
Protected
Employer
Conduct Covered
1. Personal hygiene
2. Personal
Appearance
3. Personality
4. Capabilities
5. Attitude
1. Hiring
2. Firing
3. Failing to promote
4. Demotion (lost
pay)
5. Reassignment
(significant)
6. Material loss of
benefits
7. Hostile work
environment
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Employee has burden of proof
 To
support legitimate
non-discriminatory basis for
action complained of
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Union:
 Governed by collective bargaining
agreement between union and
agency
Non-Union:
 Governed by agency regulations
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Agency has burden of proof
 To
provide evidence to support
reasons for action
 To rebut employee’s affirmative
defenses
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 Investigates
PPP’s
 Seeks Disciplinary Actions
 Seeks
Corrective Actions
 Emphasis on whistleblower
reprisal
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Burden of proof depends on type of
case.
 To
provide evidence to support
challenged action
 To
rebut claims of PPPs
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1.
2.
Human Resources/Employee
Relations
General Counsel’s Office
Why use these tools?
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Agency program required by EEOC
Regulations for EEO Cases
Incorporated into grievance process
Opens lines of communication between the
parties
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The degree of evidence the
administrative judge
(or other fact finder) would
accept as sufficient to find that a
contested fact is more likely true
than untrue.
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An employee can defend against
a disciplinary or adverse action
by disputing the agency’s
evidence and by raising an
affirmative defense.
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
Prohibited Personnel Practices
◦ Including:
 Discrimination
 Whistleblower Reprisal

Harmful Procedural Error

Mistake of Law
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Affirmative defenses must be
proven by a
preponderance of the evidence.
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
Creates contemporaneous record
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Serves as a memory jogger/refresher
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Helps HR/Supervisor determine if/when
follow-up action is necessary
Can be evidence to support subsequent
personnel action
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Can help resolve credibility issues,
especially in one-on-one situations
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Takes too much time
Union contract imposes burdens on
management
Employee might find out
Feels wrong to do it
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DO
1.
2.
Keep contemporaneous notes.
Write enough detail so event is
clear and information will help
your recall what occurred.
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DON’T
1.
2.
Call employee names or use
offensive language.
Make reference to protected activity
(EEO, grievances, etc.).
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Employee is entitled to DUE PROCESS, including:
 Advanced written notice of charges and
specifications
 Access to evidence relied on by the agency
 Opportunity to respond to charges, orally and in
writing
 Representation by an attorney or other person (if
no conflict)
 A written decision stating the specific reasons
supporting it
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To keep your misconduct action ironclad



Avoid ex parte communications during
proposal/decision phase of adverse
action process
Make sure that employee receives all
materials relied on to propose action
Make sure that penalty choice is based
on permissible factors
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If conduct may be criminal, refer matter to
Office of Inspector General (OIG)
Where conduct is directly observed, no need
to investigate but must have appropriate
documentation to prove what happened
If investigation necessary, can be conducted
by OIG, HR or Supervisor; Documenting
evidence and findings is key
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
Sick Leave Abuse

LWOP and AWOL Issues

Tardiness
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
Medical appointment

Incapacitation
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Care for sick family member

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Arranging for or attending the
funeral of a family member
Adoption of a child
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Leave restriction letter
Deal with performance or conduct
issues that flow from excessive
absenteeism
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Doctor’s/Medical Statement (can be
required for less than 3-day absence)
Manager can question medical evidence if it
looks suspicious
Manager must keep information in secure
place
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LWOP is unpaid approved leave, granted at
the manager’s discretion.
AWOL is an unapproved absence that is
disciplinary in nature.
Excessive AWOL or LWOP can lead to
discipline.
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12 Administrative work weeks unpaid (or
paid) leave for:
Serious health condition of employee
Serious health condition of the spouse,
son, daughter, or parent of the employee
Birth of a son or daughter of the employee
Placement of a son or daughter with the
employee for adoption or foster care
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* * *
Can be a leave/attendance issue
if it is repeated and impacts the
employee’s productivity
* * *
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Refers to what agency has done in
similar cases
 If agency deviates from past practice,
may lead to charges of disparate
treatment
 Past practices can be changed, but
may need to give notice first

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Solutions:
1.
Advance notice in writing
2.
Deal with problems
3.
Implement
4.
Treat all the same
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STRESS
Worker’s te?
Compensation?
N eed to a ccommoda
Worker ’s Compensa tion?
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
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No longer a prerequisite for removals or
agency initiated disability retirement
Can occur in response to employee-provided
medical evidence and other limited
circumstances, such as position with medical
standards
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Can be the basis of disciplinary action.
Labels count because the agency must prove
what it charges!
If propose a charge with an intent element,
such as insubordination, agency must prove
intent.
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Intent

Non-Intent
Can Support a higher
penalty

BUT
Requires more
stringent proof to meet
legal evidentiary
burden, e.g.,

willfulness
Less proof required
BUT
Generally, will support
a lower penalty than an
intent misconduct
charge

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Intent
Falsification
Threats
Theft of
Government
Property
Insubordination
vs.
Non-Intent
Lack of Candor
Disruptive Behavior
Misuse of
Government
property
Disrespectful
Behavior/ Failure to
Follow Instructions
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Not a valid basis for an employee to
refuse to do work assignment
* * *
Tip:
Most PDs have a catch-all provision of “other
duties as assigned.”
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Can be alternative to charge of
insubordination or threats in the
workplace
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1.
Agency Table of Penalties
2.
Agency Past Practices
3.
Douglas Factors
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
Lists various offenses and ranges of
penalties for first and subsequent offenses

Has built-in progressive discipline

Should be followed if one exists

No Table of Penalties allows more discretion
in penalty selection, but it will be more
strenuously reviewed
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1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Nature and seriousness of offense
Employee’s job level and type of employment
Past disciplinary record
Past work record
Effect of offense on employee’s ability to perform at a
satisfactory level
Consistency of penalty with penalties imposed on
others
Consistency of penalty with table of penalties
Notoriety of offense
Clarity of notice or prior warnings
Potential for rehabilitation
Mitigating circumstances surrounding the offense
Adequacy and effectiveness of alternative sanctions
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Require consideration of relevant
mitigating and aggravating factors
Should be considered by proposing
and deciding officials
Will be considered by MSPB
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If used correctly, process can assist the
manager in either improving performance or
getting rid of non-performers.
Process is of utmost importance!!
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It is hard to fire someone for performance.
Firing someone for performance takes too
much documentation.
Performance actions must be taken on track
with the regular annual appraisal schedule.
Poor performers who have been “carried”
can never be fired for performance.
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The degree of evidence that a
reasonable person might accept as
adequate to support a conclusion,
even though other reasonable
persons might disagree.
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SUBSTANTIAL EVIDENCE
PASS
PASS
PASS
PASS
FAIL
REASONABLE SUPERVISORS
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Written material is prepared [in accordance
with] established stated objectives and is
clearly written, succinct, and consistent with
regulations and established policy. Little, if
any, rewrite is required and necessary
approval/concurrence of the finished product
is easily obtained.
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Inform the employee of specific work
requirements through:
1. Written
instructions
2. Information
concerning deficiencies and
methods of improving performance
3. Memoranda
describing unacceptable
performance
4. Responses
to the employee’s questions
concerning performance
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Include details about performance
deficiencies and standards employee
is required to meet during PIP.
 Be long enough to allow meaningful
opportunity for employee to improve.

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A management analyst with a surly disposition
also produces marginal reports. You place him
on a 60-day PIP, and in the PIP letter you
require bi-weekly meetings to review report
writing quality. The first meeting ends in an
argument. You do not hold further meetings.
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Questions
1. Was the PIP adequate?
2.
Will the management analyst win at
MSPB if you decide to remove him
after you conclude he has failed the
PIP?
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If agency follows procedures and employee’s
performance doesn’t improve, removal will be
upheld.
But…
If agency does not follow procedures and
employee’s performance does not improve
removal will be reversed.
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Substantial evidence standard applies
Only MSPB consideration is evidence during
the PIP
PIP must be reasonable in length,
expectations, and assistance
Performance standard must be attainable
Douglas factors not relevant to performance
cases; Non-stigmatizing (early out
eligibility)
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Agencies cannot use Chapter 75
adverse action process to deal with
performance problems.
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
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Performance judged by adherence to
performance standards vs. conduct in the
workplace
Conduct action can be taken on the basis of a
one-time act
Judged by different evidentiary standards
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Some or all of poor performance is more
than 1 year old
The evidence is strong
Performance problem is serious (i.e., life or
property threatened)
Performance standard notice and other PIP
requirements not met
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


Evidence is weak
All performance procedures (i.e., notice of
standards and PIP) met
Misconduct shown by applying performance
standard to unacceptable performance
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The Efficiency of the Service is
Not Promoted
by bringing charges against employees
who file EEO complaints or grievances or
who blow the whistle
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1. Opposing any act of employment discrimination or making a charge,
testifying, assisting, or participating in any manner in an investigation,
proceeding, or hearing on an employment discrimination claim. 42 U.S.C. §
2000e-3(a)
2. Disclosing information which the employee reasonably believes evidences:
 violation of law, rule, or regulation, or
 gross mismanagement, gross waste of funds, abuse of authority,
substantial and specific danger to public health or safety. 5 U.S.C. §
2302(b)(8)
3. Exercising any appeal, complaint , or grievance right granted by law, rule, or
regulation. 5 U.S.C. § 2302(b)(9)(A)
4. Testifying for or assisting any individual in the exercise of a right referred to
in Number 3. 5 U.S.C. § 2302(b)(9)(B)
5. Cooperating with or disclosing information to an IG or the Special Counsel. 5
U.S.C. § 2302(b)(9)(C)
6. Forming, joining, or assisting any labor organization, or refraining from any
such activity. 5 U.S.C. § 7102
7. The right to individually or collectively petition Congress, or to furnish
information to Congress, or to a committee member. 5 U.S.C. § 7211
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
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Engaging in protected EEO activity;
Knowledge of protected activity by
management official (alleged retaliation);
Relationship shown between protected activity
and challenged personnel action;
Or
Act by management official designed to deter
exercise of protected rights.
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

Burden of Proof (corrective action):
employee must show whistleblowing was a
contributing factor in the personnel action
at issue.
Defense (corrective action): agency can
prevail by showing by clear and convincing
evidence that the same actions would have
been taken (or not taken) in the absence of
whistleblowing.
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Disclosure of
a. Violation of law, rule or regulation;
b. Gross mismanagement;
c. Gross financial irregularity;
d. Abuse of authority; or
e. Specific threat to health or safety
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The Notification and
Federal Employee
Antidiscrimination and
Retaliation Act
P.L. 107-174
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

Agencies are to reimburse the
Judgment Fund for the amounts of
judgments, awards, and settlements in
connection with a discrimination
lawsuit.
Individuals are to be held accountable
for their actions.
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1.
2.
3.
4.
5.
6.
7.
Procrastinating
Engaging in disparate
treatment/favoritism
Personalizing the problem
Retaliating
Acting impulsively and/or without
supporting evidence
Failing to communicate
Failing to follow-through
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