From Bloomberg Law:
A former attorney adviser with the Social Security Administration convinced the Federal Circuit Nov. 7 that his veteran status was a substantially motivating factor in the agency’s 2011 decision to fire him.
As a qualifying veteran hired by a government agency, Clarence McGuffin was entitled to a shorter probationary period than other non-veteran new hires before the full suite of Civil Service Reform Act rights vested. Those rights include the right to appeal adverse employment actions to the Merit Systems Protection Board....
“We want to terminate him so that he does not acquire MSPB rights,” read one intra-agency email quoted in the opinion. Another email stated that McGuffin was a “vet” who “has to be terminated in his first year.” ...
McGuffin was let go from his attorney adviser position in SSA’s Office of Disability Adjudication and Review in part because he allegedly wasn’t producing his “fair share” of work, a monthly quantity determined by dividing the office’s caseload across all of the attorney advisers charged with authoring benefits appeals decisions. But SSA isn’t supposed to use an attorney adviser’s “fair share” production as a performance metric until their second year with the agency, Reyna said. ...
“The record is clear that SSA closed the door on Mr. McGuffin well before the end of his first year to avoid the inconvenience of defending itself should Mr. McGuffin assert his procedural safeguards afforded under the CSRA,” Reyna said. The court reversed the contrary decision from the MPSB and remanded the case for further proceedings. ...
The case is McGuffin v. SSA, Fed. Cir., No. 17-2433, 11/7/19. ...
23 comments:
That's the first time I've ever really seen the vet preference work in reverse, so to speak.
8 years for justice
The probation or trial period is the only real mechanism an agency has to manage poor performance for new employees. Here management got to the point of having to make a decision on whether this new employee warranted continuing his employment, a decision ostensibly made for all new employees. Deciding to remove him before this period expired was exactly how this process is supposed to work.
We can argue about whether ODAR fairly assessed him compared to all other new employees in that position. But to frame the issue as treating a vet unfairly due to his vet status is misleading. As the above poster noted, this rule has the peculiar effect of giving vets less leeway in establishing themselves before they can become permanent.
It is not misleading to frame the issue as treating a vet unfairly due to his vet status because although he had a 2 year probationary period like other non-vet employees, he was terminated before his one year anniversary because his vet status gave him MSPB protections at his 1 year anniversary and they did not want him to be granted those rights based on his military service. Non-vets don’t get that until their 2 year anniversary. And, they did not terminate the non-vet’s employment before her 1 year mark.
This is an example of why it is so difficult for SSA in general, and OHO in particular, to get rid of poor performing employees. The managers did their best to work within an imperfect system.
Exactly, 8:50. As an SSA manager I never want to lose a new employee especially when I have no guarantee of replacement. Not to mention all the time and money invested that would be wasted.
But on the other hand, holding on to an underperforming employee for years and years or having to go through a performance action is such a drain on management resources which we also don't have. Terminating someone before he gets mspb rights is the only good options sometimes, as it seems it was here with this veteran.
If any of you have a good solution I am all ears because as 8:50says the system is definitely imperfect.
@10:41 The vet probably was not given a fair chance. And, if the vet was an attorney and his supervisor was not, that creates an even bigger issue because the non-attorney supervisors are generally useless helping to get someone up to speed. And, that amongst many other reasons, is why there should not be non-attorney management folks at OHO. And, that's why the HPI project was such an ill conceived idea.
I agree with 10:41 comments. My experience has been in fact that we bent over backwards to make a veteran succeed. More so than other new hires through coaching, mentoring, EAP, etc. But if they are unable to do the job in the long run you do a disservice to everyone.
@10:41 PM
The solution is to give the veteran another year to get up to speed- as would be done for any non-veteran employee- and, if necessary, follow the proper procedures required to terminate the employee if the employee, after being given the same opportunity as non-veteran appointees, failed to meet performance expectations. I'm not sure what's so difficult to understand? Perhaps I'm just not lazy enough to understand your perspective?
and @8:34 PM
It's not misleading at all. Management gave the veteran less time than non-veteran employees to prove his ability to meet performance expectations. And admittedly did so merely because they felt it would be too much of a hassle to do what the law requires and give him the right he was entitled to as a veteran.
It's virtually impossible to fire anyone unless they are in their probationary period unless they perform physical violence on someone or threaten to - with witnesses. This has been true for the past 30 years. Occasionally you can get rid of someone by giving them an (undeserved) disability reitrement - which often is the employee's aim. No problem here would be my assessment. The shorter probation period actually worked against the employee here. If he had a two year probationary period they would have had more time to be certain of his (in)competence.
Yes 211 you have phrased it perfectly but apparently fail to see the perversion on application. That is Vets are given special protections hence the 1 year MSPB protection. But instead some manager coached by some mean spirited HR hack, used the special protection against the employee by firing him instead of giving more support to get up to snuff. But has been the BHA/OHA/ODAR/OHO/WTF way since we were stuffed with non-atty managers via HPI. Undeserved disability retirement? REALLY!? Don't you get it 211, it was management who made these people disabled by the organized harassment and micromanagement.
I am sure that if you asked most Americans (not counting those with an anti-military bias) if vets in government jobs that were only able to do 90% of the work that the job requires should be let go... I am sure they would say, no. Clearly, they wouldn't want vets to be discriminated against because they were vets. Perhs the real failure here was the management's failure to help him become more efficient in his job. I mean, that is one of management's main jobs. In the private sector it is, anyway. In my work experience, I had a job classification that required me to do several jobs. One of those jobs was extremely difficult for me to do (because of disabilities). My supervisor asked me, "What can I do to help you qualify?" I said, "I need a different trainer." He said, "But, he's the best at this job." I replied, "I simply can't physically do it his way. I will NEVER be able to do it HIS way." I got a different trainer, found easier ways for me to do the job and later trained others to do it in a more efficient way.
If you don't mind. I'm Clarence McGuffin. I am a severely-disabled veteran. What's missing here are details. First, SSA didn't even interview me for the position. ODAR hired me sight-unseen because of my veterans preference, which they were too inept to comprehend. I got a call on Friday to show up the following Monday without knowing much about the position beyond the inaccurate announcement. I had experience writing for judges in a far more professional environment. Before I hired on, unbeknownst to me, my sore managers announced my imminent arrival as a "special hire" at a staff meeting. Because of my cognitive (service-connected) impairments, I was entitled to accommodations. SSA withheld these, along with DW training, until my seventh month. Also unbeknownst to me, as soon as I requested them, my HOD emailed ATL suggesting request indicated I would be a problem. When the HR atty advisor called the HOD, the HOD said I was a "vet they did not hire", suggesting she was sore about my vet hiring preference. In sum, they were gunning for me from the outset, and they withheld many of the keys to me productivity at the beginning (1st 6 mos), then shortened the time I had to establish my value by firing me before the end of two years. Notably, the subsequent Raleigh ODAR HOD (now retired), my GS (now the HOD) and the HOCALJ (since deceased) uttered not one word to me about any of my decision drafts being inadequate ... until they dropped paper on me and ushered me out the door. They never "managed" my performance. They resented my accommodations. They emailed one another about my disabilities in coarse language, therein revealing that their ONLY concern was my DWSI score, although they swore in numerous depositions that DWSI was not a performance metric or indicator. Meanwhile, DWSI #s for Raleigh show that numerous Raleigh writers had numbers below what these officials, in stark contradiction of their "DWSI is just a tool for assigning cases" sworn testimony, testified were cause for my immediate firing. Throughout Region IV countless writers remain far below expectations meted out on me, yet those writers are retained. Furthermore, while I may take more time to get up to speed, I was on the right track and my drafts were solid. I encourage anyone who harbors doubts about my writing ability to go on PACER and compare my briefing at the Federal Circuit (and the cited facts therein) with DOJ's.
I have fought this case for nearly nine years. My FOIA'd Region IV DWSI numbers that SSA so zealously sought to suppress do not lie about disparate treatment. But this notion that managers cannot manage employee performance because the system is stacked against them is laughable. The mgrs are ignorant and/or lazy. The procedural protections afforded at 5 USC are so poorly guaranteed, mgmt almost always wins if they simply learn and stick to its basic processes. MSPB and EEOC will almost always side with the agency, and the Fed Cir Std of Review is nearly insurmountable except in the most extreme cases of well-documented abuse.
Another thing I learned while litigating this case is that OGC counsel in ATL defended against another disabled (non-veteran) writer's discrimination claims in GBO, and, in doing so, they idiotically revealed PII for every claimant in GBO ODAR over a 2-3 year period, going so far as revealing decision drafts containing some of these claimants' medical evidence related to ETOH/drug trx, MH trx, reproductive organ issues, and so on. When I reported this to SSA IG, I rec'd no response whatsoever despite repeated attempts to communicate with that office. Finally, I managed to goad the agency (through DOJ counsel) to removing some, but not all, of those documents from PACER. To my knowledge, not one SSA employee has been counseled or disciplined for this massive PII breach.
I fully expect another 2-3 year battle for reinstatement and backpay on par with the comparator named in the emails discussed in the Fed Cir decision. And I anticipate that, MSPB being so pro-agency, I will return to Fed Cir at some point. I also anticipate retaliation from the HOD when I return to SSA. These people never learn. I am up to the challenge, and I welcome and embrace it.
If you want to see documents related to my case, including my 1000-pg Appendix of supporting evidence, they are available on PACER.
Oh, and happy Veterans Day to those who actually give a hang. The Fed Cir decision was perfectly timed.
Many thanks to you, little monkey/Mr. McGuffin, for fighting the good fights. Having litigated against SSA’s AG I can attest that they have been guilty of massive PII breaches on more than one occasion, without consequence.
“[H]olding on to an underperforming employee for years and years or having to go through a performance action is such a drain on management resources which we also don't have… If any of you have a good solution I am all ears because[]the system is definitely imperfect.”
At the risk of belaboring the obvious- here’s your answer, thoughtfully provided by little monkey, with emphasis (in the form of capitalization) added:
“[T]his notion that managers cannot manage employee performance because the system is stacked against them is laughable. THE MGRS ARE IGNORANT AND/OR LAZY. The procedural protections afforded at 5 USC are so poorly guaranteed, MGMT ALMOST ALWAYS WINS IF THEY SIMPLY LEARN AND STICK TO ITS BASIC PROCESSES. MSPB AND EEOC WILL ALMOST ALWAYS SIDE WITH THE AGENCY, AND THE FED CIR STD OF REVIEW IS NEARLY INSURMOUNTABLE except in the most extreme cases of well-documented abuse.”
Little monkey’s answer is supported by my experience as a manager and legal counsel in another federal agency where managers are actually held accountable for doing their jobs. There is NO reason why an incompetent or underperforming employee in the federal workforce cannot terminated other than the incompetence of his/her managers. Unfortunately, ODAR/OHO has more than its fair share of folks in management positions that do not belong there, and/or lack the requisite training to do anything other than favor their pets and persecute all others.
Is it just me, or does it seem like whenever an article or commented is posted it seems like SSA apologist/management shills crawl out of the woodwork? Is there an office in the Crystal Palace devoted toward spinning things SSA's way, or are all you overworked SSA management supporters posting your apologies and rationalizations on the taxpayer's dime?
Yes it was Mr. McGuffin. We should all be grateful to people like you who fight the good fight trying to ring some accountability to the cess pool that SSA has become. I assure you it wasn't always like this.
Mr McGuffin, THANK YOU for your service!!! Our government needs to provide more opportunities for men and women like you! SSA should be THE leader in demonstrating what people with disabilities can do. What they did to you is so shameful... Unfortunately, we may have to wait for God to give these people what they deserve. Vengeance is the Lord's. At the very least, they should be fired. I am not holding my breath for that to happen. The bureaucratic process and the Federal Courts are way too protective of the system and not enough of the individual. This is especially true in certain cicuits in the SSDI appeals process. In effect, the courts are way too often "rubber-stampers" of the administration state. Thankfully, you were an exception.
Thanks for your service Mr. McGuffin. This fight took a long 8 years but it may help the other vet coming down the pipe working for the SSA.
Wow, this was a really interesting thread. As a veteran and former ODAR Supervisor myself I just want to add that the treatment and supervision of the OHO Attorney Advisor position is a real problem for the agency. It is not always an easy job even for skilled attorneys and the agency is not forgiving to new hires. Good luck to you Mr. McGuffin, and I am sorry for your experience with SSA. I have had a great deal success with the agency thanks in some part to my veterans status, and I hate to see something like this happen to a vet and fellow employee.
Everyone claims it's nearly impossible to fire an SSA employee after the probationary period. I disagree. I've seen a DO manager fire a couple of people, and was told he fired others before I was assigned to that office. Sure, it requires some following the procedures and paperwork. But it can be done.
SSA OHO has a long history of denying accommodations. Often its approach is to drag its heels, think of ways not to comply, and generally make the employee as miserable as possible to get rid of them merely because they dared to ask for an accommodation. It is both illegal and reprehensible in this case and many others. The emails quoted in the decision reveal the distorted thinking of the managers involved as they plotted to terminate the employee. It's very impressive that this attorney advisor persevered with his claim on his own -- most employees would have given up. Keep fighting!
SSA management training ranks up there with how UBER provided training. Some regions and areas try to provide quality training and support so that management provides quality leadership. Overall though managers are thrown under the bus and employees with them.
Post a Comment