by Mathew B. Tully, Esq. |
I keep waiting for the day when federal agencies start distributing to employees pencils, paper clips and rubber bands with the expectation that these supplies will be sufficient to make the government run. But, as skilled as federal employees are, not all of them are MacGyvers who can do so much with so little. (For those Generation Y federal employees, “MacGyver” was a 1980s TV show whose namesake hero always managed to use whatever he found in his pockets or on the ground to perform seemingly impossible tasks).
The Office of Personal Management’s latest Federal Employee Viewpoint Survey Results indicate that federal employees, too, feel as though the government is expecting them to accomplish MacGyver-esque feats with scarce resources. In fact, one of the biggest drops recorded in the survey pertains to employees who claimed they lacked the resources to perform their duties. In 2013, only 44 percent of employees surveyed reported having sufficient resources to get their jobs done, compared to 48 percent the previous year and 50 percent in 2010.
Federal employees whose performance suffers because of the lack of resources available to them may find the government has adopted a tough love approach to complaints over such deficiencies. The government, for example, usually will not accept insufficient resources as an excuse for cheating. The Merit Systems Protection Board (MSPB) case Irma J. Jackson and James White v. Department of the Army, (2005) involved two lead police officers who were removed for conspiring to falsify firearm tests so officers under their direction would be recorded as qualified. The MSPB said: “While it may be that the appellants were under pressure to train new officers rapidly, without adequate resources, and in the face of low morale, we do not find that these circumstances mitigate the misconduct at issue.”
In some extreme cases, insufficient resources have driven federal employees to early retirement or resignation. And when these employees attempt to get their jobs back by filing an appeal with the Board, claiming constructive discharge, they usually do not prevail. The Board tends to view retirements or resignations under such circumstances as being voluntary. “[T]he fact that an employee is faced with an inherently unpleasant situation or that her choices are limited to unpleasant alternatives does not make her [retirement] decision involuntary,” an MSPB administrative judge said in Barbara J. Jones v. Court Services and Offender Supervision Agency for DC (2008). This case involved a director of Equal Employment Opportunity (EEO) who retired because, among other reasons, she was denied adequate resources necessary for the performance of her duties.
Employees who irk supervisors by sounding alarms over insufficient resources may also find they are not protected by the Whistleblower Protection Act (WPA) or the Whistleblower Protection Enhancement Act (WPEA). As the MSPB noted in Katherine L. Fleming v. Department of the Interior (2012), an employee’s “expression of a fear that someday the agency’s field engineering program might not have the resources needed” does not qualify as a WPA-protected disclosure concerning a substantial and specific danger to public health or safety. The Board further noted that the “revelation of a negligible, remote, or ill-defined peril that does not involve any particular person, place, or thing is not a protected disclosure of a substantial and specific danger to public health or safety.”
Employees who feel that they are being forced to retire because they believe their performance ratings are suffering due to any lack of resources may want to consult with an experienced federal employment law attorney about challenging the validity of their performance ratings and standards. They should pursue such consultations before quitting their jobs. As the Board noted in Evelyn P. Melnick v. Department of Housing and Urban Development (1989), performance appraisals must be based on clearly written and objective criteria, which are “reasonable, realistic, [and] attainable.” Unrealistic and unreasonable performance standards could equate to an agency’s abuse of discretion.
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