A Letter of Caution Can Equal Reprisal – or, Another Yellow Donut Case

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By Deborah Hopkins, December 7, 2021

We have long taught that issuing a letter of caution, warning, expectation, concern, and the like can cause more problems for agencies than it’s worth. A supervisor can caution, warn, set an expectation, or express concern for an employee verbally, then follow it up in an email, and achieve the same purpose, while lessening the likelihood of a grievance or complaint being filed. At FELTG, we refer to these types of documents as lesser letters, or more memorably, the yellow donut.

There are too many cases where agencies have spent hundreds of thousands of dollars, plus time and years of effort, defending these documents before various third parties. These documents don’t have any legal substance or definition and don’t even count as disciplinary actions. Just to get you started, see, Meaghan F. v. SSA, EEOC Appeal No. 0120152932 (November 2, 2016); Huddleson v. USPS, EEOC No. 0720090005 (2011) Massie v. DoT, 2010 MSPB 106; Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015).

A few days ago, I came across a fairly recent EEO case that confirms the above: Will K. v. USPS, EEOC Appeal No. 2020000109 (Oct. 26, 2020). Among other claims raised, a USPS Operations Industrial Engineer alleged retaliation for protected activity after his supervisor discussed with him several performance concerns. The supervisor issued a Letter of Concern (LOC), which recapped the discussion. If you’re thinking that an LOC is not discrimination or reprisal and the supervisor did nothing wrong here, you’re correct in general. But it all depends on what is in the LOC. If the content includes a mention of events related to previous protected activity, the agency has a big problem.

In this case, the LOC contained a list of areas where the supervisor was concerned about the complainant’s performance, including:

  • Mentioning that the complainant “claimed work-related illness/injury for stress” [which is an employee’s right, under workers’ compensation laws];
  • References to a previous EEO settlement agreement; and
  • An indication that the complainant “claimed discrimination and harassment at work, currently being investigated.”

The AJ granted summary judgment to the agency. On appeal, the EEOC found the reference to the Complainant’s protected activity was per se retaliation. Including this type of information in a Letter of Concern is “reasonably likely to either deter Complainant or others from engaging in the EEO process. Therefore, although Complainant ultimately has not demonstrated that the LOC itself was unwarranted, the Agency is still liable for per se retaliation with regard to some of the language used in the LOC.”

With exemption requests to the COVID vaccine requirement indicating protected activity under the EEO categories of disability and religion, we want to help your agency handle these cases properly and avoid even the hint of retaliation.

So, send all your supervisors, HR and EEO staff to the January 19 webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace, and we’ll show you how. [email protected]

The Good News: A Letter to Santa 2021

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By Ann Boehm, December 7, 2021

Dear Santa:

I hope you and Mrs. Claus had a good year, despite the continued pandemic. I guess you’re happy to have your own elf labor and reindeer transportation, since the supply chain appears to be a problem now.

I think I should be on the good list this year. I have decided that I won’t mention the pony this year, even though a pony would be really neat. And since I’m not asking for a pony, I hope you will help me with some other things I really want for Christmas. Here they are.

1. A revised Federal EEO process.

Yes, Santa, I know that the pony would probably be easier than this, even with the sleigh limitations. But this one would really help EEO complainants and Federal agencies.

2. Senate-confirmed MSPB Board members.

Santa, please stop laughing. This one is serious. No quorum at the MSPB since January 2017 is getting a little silly. The three nominees are through committee and just waiting for confirmation. Can you help?

3. Senate-confirmed FLRA members and General Counsel.

There are three FLRA members, but two are on expired terms. It would be bad for the FLRA to go the way of the MSPB and not have a quorum. And the Acting General Counsel can only serve for so long. Not having a General Counsel means no ULP processing, and that’s a bad thing. Two FLRA nominees and the General Counsel nominee are through committee and waiting for confirmation. Please help with these nominations, too.

4. Acknowledgment from this Administration that pro-Union doesn’t mean pro-bad employee.

The Biden Administration is really pushing agencies to encourage union membership and work with bargaining unit employees. That’s a nice theory, but too often unions take the side of the toxic, draining employees at the expense of the effective, hard-working employees. Santa, it would be great if you could help everyone understand that bad employees are bad employees, regardless of their bargaining unit status.

5. Progressive discipline (reprimand, suspension removal) even for non-vaccine disciplinary cases.

Santa, we here at FELTG have taught about progressive discipline for a very long time. Sometimes agencies don’t always believe us when we tell how it works, and then bad employees stay employed for far too long. The vaccine mandate has highlighted how progressive discipline works. I would like to ask you to make sure agencies (and this Administration) understand that progressive discipline is appropriate to use for all misconduct cases (unless misconduct is bad enough to remove an employee in the first instance—and yep, that can be appropriate).

6. More in-person training.

It’s been amazing to be able to train agencies virtually during this bizarrely long pandemic crisis. But I do miss the in-person interaction. I’m fully vaccinated and willing to travel. If any agencies want in-person training, I’m ready to roll.

7. A pony.

OK. I said I wouldn’t ask, but I have to keep trying. Stay safe, Santa. Merry Christmas and Happy New Year! Ann

[email protected]

Updated Guidance on Vaccine Refusals – Just in Time for the Holidays

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By Deborah Hopkins, December 7, 2021

While the federal mandate for COVID-19 vaccination had a compliance rate of more than 97% from civilian and military personnel as of the end of November, there are still a number of personnel who have not complied with the Executive Order or requested an exemption. The deadline for compliance of civilians was November 22. Until a few days ago, the guidance from the administration had been that agencies should begin the process of counseling, then quickly disciplining, employees who refused to comply.

Perhaps, as a direct result of requests for delay by labor unions, the Safer Federal Workforce Task Force updated its guidance on discipline for vaccine refusals, encouraging agencies to counsel and educate employees on the benefits of vaccination for an “appropriate period” of time rather than the 5 days previously recommended.

In an email to agencies, OPM more closely defined that time period by advising agencies to refrain from suspensions until after the holidays. This timeline aligns more closely with the January 4 deadline the administration set for federal contractors to be fully vaccinated against COVID-19.

The Task Force guidance also included a new suggested step in the disciplinary process of noncompliant employees — the reprimand.

If the employee does not demonstrate progress toward becoming fully vaccinated through completion of a required vaccination dose or provision of required documentation by the end of the counseling and education period, agencies may issue a letter of reprimand, followed by a short suspension (generally, 14 days or less).

Reports from the end of November revealed that some agencies were already beginning the disciplinary process for employees who did not comply with the vaccine requirement. Most of those actions will likely be held in abeyance, but the email from OPM does not say agencies are prohibited from disciplining certain noncompliant employees before the end of the year.

According to a November 29 article by Government Executive, OPM’s email said “We understand that your agencies may need to act on enforcement sooner for a limited number of employees, such as where there are additional or compounding performance or workplace safety issues under consideration, but in general, consistency across government in further enforcement of the vaccine requirement after the start of the new calendar year is desired,” they wrote. “We believe this approach is the best one to achieving our goal of getting the federal workforce vaccinated.”

I’m sure this is frustrating for some of you who had already begun work on the disciplinary process and is welcome news to others who are inundated with discipline issues. Wherever you might be, and however you might feel about the vaccine requirement, FELTG thanks you for your service to the American people and promises we will keep you posted as new developments arise. [email protected]

Performance System Failures: Lack of Feedback, Poorly Written Narratives

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By Barbara Haga, December 7, 2021

Picking up from last month’s column, we look at who’s responsible for setting the stage for feedback to take place and what a good narrative should include.

It’s common to find language in agency appraisal plans that sets out requirements for which official(s) are responsible for ensuring that feedback is provided to employees and that it is usable feedback.

Most agency plans assign responsibility for ensuring that the appraisal program operates as it should to the head of the component, installation, or operating division. The DoD Instruction on the Performance Management and Appraisal Program (DOD 1400.25, Volume 431) states on page 5 that DoD Component Heads (think Army, Navy, Air Force) are responsible for overseeing “the implementation, application, and evaluation of performance management programs within their respective Components.”

That’s an incredibly broad statement. However, included within it is ensuring that supervisors provide required feedback and that narratives actually contain documentation of accomplishments around the elements that are designated in the plan.  Usually, this responsibility would be delegated further down the line to subordinate levels of managers until we get to raters and reviewers. Here is the language regarding those officials from the HHS Performance Management Appraisal Program (430-1, Sections VIII and IX):

HHS – Rating Officials

  • Manage the full performance cycle from:
    • Clearly communicating expectations to holding employees accountable
    • Monitoring performance to providing regular feedback

HHS – Reviewing Officials

  • Implement performance management policies and practices within the appropriate span of control
  • Ensure that Rating Officials (ROs) carry out their performance management responsibilities within established deadlines and evaluate Rating Officials to ensure accountability for HHS’s PMAP

Here is where the rubber should hit the road. The requirement for the feedback sits squarely on the shoulders of the supervisor, but the enforcement comes from the reviewing level. Yet, I’ve heard countless stories of managers not carrying out these responsibilities without any consequence.

System Failures

Many years ago, I helped an agency rewrite all of their performance elements and standards. It was not a large agency. Also, they had a lot of employees who were attorneys who did the same work, so the task wasn’t as monumental as it might sound. (Don’t get excited, it wasn’t the MSPB). I led a group of employees and a supervisor and a union official who worked on the content of the elements and standards. That part worked great. What they told me about how ratings were done was shocking. I’ve seen a lot more since then and likely wouldn’t be as shocked now.

Here’s their story. I don’t know how many were in this situation, but it was common enough that all of the employees on the team said: “Oh, yeah. That’s how it’s done here.”

The managers of these attorneys, paralegals, and other support staff would not meet with them to discuss ratings. Ever. They would prepare the ratings and wait until the employees left for the day and put the ratings in the employees’ chairs with a note saying basically “sign this and give it back to me.”

I was going to do a briefing for the managers to introduce the new plans and get their feedback on them. I was also covering some basic provisions of the appraisal system in that briefing.  Some of the team members made a slide for me to include that had a red stop sign shape with the words, “Stop Drop and Sign” in white letters across it. They were asking me to tell their supervisors to stop leaving appraisals in empty chairs and not discussing them.

These supervisors were very high level, so the threat of rating them lower because of their failure to provide at least a minimum amount of feedback wasn’t a threat. Apparently, there was no requirement coming from above these supervisors to meet their responsibilities as set in the agency appraisal system.

Another System Failure

The same agency asked me to come back the next year. Their headquarters had told them they had too many Level 5 ratings and they needed to actually write a standard for Level 5. It was my brilliant idea that if I reviewed a sample of those Level 5s, maybe those managers would have done a good job of writing down what a 5 looked like and they would already have done a lot of the work for me.

So, I reviewed the sample. In some cases, they did a good job.  In others, I wanted to cry. After all the work of the team getting the standards done, the training I did on how they should be used, and what their own agency plan required, I found all sorts of problems.

The worst one was written to support a Level 5 on the element about their writing of appeal decisions. The element set measures about adequately researching issues, properly citing precedent cases, writing clearly, raising issues in advance if there was a legal issue that needed to go to their headquarters before the decision could be finalized, and so on. The appraisal for one of the GS-13s started off with a sentence about writing appeal decisions followed by this:

In addition to the outstanding work Mary does for the XXXXXX Branch, she has also volunteered and has done an excellent job in organizing a number of functions for the XXXXXX Division, including the end of year pizza party, after work socials, the end of year Holiday Party, and …

That rating had been approved by the reviewing level and an award paid, at least in some part, based on being the Division party planner. I helped write those elements and standards and I promise there was no event coordinator duties covered in those plans. It does cause one to wonder sometimes.

Next time, we talk about what documenting ratings should be about.

COVID Retaliation: What You Need to Know

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By Michael Rhoads, December 7, 2021

Last month, the EEOC updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws under Section M. Retaliation and Interference. The anti-retaliation protections outlined in the guidance only apply to the exercise of rights under the federal EEO laws.  The questions and corresponding answers are meant to guide federal agencies when considering the rights of job applicants, employees, and former employees in connection with COVID-19.

Some of those questions are below, along with our thoughts and EEOC’s answers:

Do job applicants and employees (including former employees) have protections from retaliation for exercising equal employment opportunity (EEO) rights in connection with COVID-19?

According to the EEOC guidance: “Speaking out about or exercising rights related to workplace discrimination is called ‘protected activity.’ Engaging in protected activity, however, does not shield an employee from discipline, discharge, or other employer actions taken for reasons unrelated to the protected activity.”

For examples of COVID retaliation join Katherine Atkinson on Wednesday, January 19 from 1:00-2:15 PM ET for the webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace

Who is protected from retaliation?

The retaliation protections apply to all types of employees including full-time, part-time, probationary, seasonal, and temporary. It is also important to note that an employee’s or applicant’s citizenship or work authorization status is not a factor when considering retaliation protections.

When do Retaliation protections apply?

Always. When considering retaliation protections, consider whether the employee or applicant has a reasonable belief that an EEO law has been violated in the workplace. The employee or applicant must also come forward with those beliefs in a “reasonable manner.”

When is an employer action based on an employee’s EEO activity serious enough to be unlawful retaliation?

This is the hardest question to answer, but if it looks like a duck, and quacks like a duck, it’s a duck.  Per the EEOC’s guidance: “Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity.” Examples include suspensions, denying a promotion, negative or less than favorable evaluations, and transfers. Retaliation can also take place outside of the workplace. An action by the employer is still considered retaliatory even if the employee or applicant moves forward with an EEO complaint or complaint-related process.

Does this mean that an employer can never take action against someone who has engaged in EEO activity?

No.  If an employer takes action against an employee or applicant who has engaged in EEO activity, the action must be based on the employee’s or applicant’s conduct or performance.

For example, if an employee’s performance slips, or if the employee makes harassing statements to co-workers, employers may respond with appropriate action.

Does the law provide any additional protections to safeguard ADA rights?

Yes. For example, if an employee or applicant asks for a religious accommodation for an FDA-approved vaccine, this type of accommodation request is covered under the ADA. Employers should engage in their agency’s reasonable accommodation process in such circumstances.

An important reminder comes at the end of the question-and-answer segment: “The employer’s actions may still violate the ADA’s interference provision even if an employer does not actually carry out a threat, and even if the employee is not deterred from exercising ADA rights.”

Happy Holidays, and I’ll see you back here in the New Year. Stay safe, and remember, we’re all in this together.  [email protected]