Denying Leave Wasn’t Discrimination, It Was Good Workplace Management

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By Deborah J. Hopkins, February 12, 2025

Quick facts:

  • Employee claims of discrimination often originate over disagreements with management practices or actions.
  • Employees are required to follow proper leave procedures, even in cases where the leave is an entitlement.
  • A complainant’s ten claims of discrimination failed because the agency articulated a legitimate, nondiscriminatory reason for each of its actions.

The annals of EEOC case law are full of decisions where employees file EEO complaints when they are unhappy with management, have personality conflicts with their supervisors, or perceive unfair treatment in the workplace. And while, unfortunately, we sometimes see illegal discrimination in the workplace, we also see complainants turn to the EEO process as a mechanism to challenge legitimate management actions.

Not long ago, this case caught my attention: Billy L. v. TSA, EEOC App. No. 2022004994 (Oct. 24, 2024). It’s worth a full read, but I’ll summarize it here.

The complainant was a transportation security inspector at the Denver International Airport who alleged age (61) discrimination and retaliation for prior protected EEO activity when:

  1. On September 27, 2021, management charged Complainant 3.75 hours of absence without leave (AWOL);
  2. On October 20, 2021, management denied Complainant’s request to change the September 27, 2021, AWOL charge to six hours of telework;
  3. On or after October 20, 2021, management denied Complainant’s request to claim 24 hours of paid administrative COVID-19 leave for October 6-8, 2021;
  4. On October 20, 2021, management denied Complainant’s request to claim eight hours of telework and/or claim eight hours of paid administrative COVID-19 leave for October 18, 2021;
  5. On November 4, 2021, management issued Complainant a 3.26 rating on his Fiscal Year (FY) 21 Employee Performance Management Plan (EPMP) appraisal;
  6. On November 19, 2021, management required Complainant to use one hour of annual leave in lieu of granting advance sick leave when Complainant requested leave under the Family Medical Leave Act (FMLA);
  7. On or after November 19, 2021, management required Complainant to conduct administrative duties while on FMLA;
  8. On December 1, 2021, management denied Complainant’s request for advance sick leave;
  9. On December 6, 2021, management denied Complainant’s request to telework on December 7, 2021; and
  10. On December 8, 2021, management issued Complainant a Letter of Reprimand (LOR).

Id. at 2.

I have no doubt this employee believed he was the victim of discrimination and retaliation – most complainants do. However, the agency successfully articulated legitimate, nondiscriminatory, and nonretaliatory reasons for each of the ten actions. A quick summary of the agency’s evidence on each claim:

Claim 1, AWOL charge

The supervisor explained the complainant was AWOL during the relevant hours and did not properly follow leave procedures, which required him to request unscheduled leave at least 60 minutes prior to the start of his shift. He did not notify his supervisor he needed to use leave until 3.75 hours after the start of his shift. Id. at 3.

Claim 2, Denial of EEO official time

The supervisor properly denied the complainant’s retroactive request to convert the September 27 AWOL charge to telework/official EEO time, because the complainant was required to request official time in advance and not after the fact. The supervisor granted the complainant’s proper request for future official time. Id.

Claims 3 and 4, COVID-related leave

The complainant, after recovering from COVID, informed the supervisor that he was changing his regular day off (RDO) and telework schedule in an attempt to get another day of COVID-related administrative leave beyond the ten days the agency had authorized. The agency’s policy required employees to request changes in advance, so the supervisor’s denial was appropriate.

Claim 5, Performance rating

The agency accurately rated the complainant’s performance as Achieved Expectations – the equivalent of fully successful – because the complainant “did his assigned work and met relevant performance standards … [but] did not do additional work to merit a higher rating.” Id. at 20.

Claims 6 & 8, Denial of advanced sick leave

The agency properly denied the complainant’s request for advanced Sick Leave because the complainant’s retirement date was set for the end of 2021, and he would not remain an employee long enough to “liquidate the indebtedness,” or pay it back. Id. at 12.

Claim 7, Administrative duties assigned while on FMLA

The supervisor sent the complainant emails telling him to submit his time and attendance into the timekeeping system, and that he was expected to review his annual performance appraisal. However, she credibly stated that she did not expect the complainant to perform any of these duties while in FMLA status and that she told him he could wait to perform these tasks until he returned from leave.  Id.

Claim 9, Denial of telework

The complainant did not report to work onsite on December 7, 2021, despite a supervisor’s explicit instructions on December 6 that he was required to report onsite on December 7. Therefore, the denial of telework status was appropriate.

Claim 10, Reprimand

The supervisor had a legitimate, nondiscriminatory reason to issue the reprimand because the employee failed to follow the supervisor’s instruction to attend a mandatory support block.

This is a perfect case to demonstrate that employees don’t take leave, they are required to request leave. Also, a supervisor’s appropriate leave denial is NOT discrimination or retaliation, it is proper management and enforcement of agency policies. As the EEOC concluded, “the record is devoid of testimonial or documentary evidence to contradict Supervisor1 and Supervisor2’s legitimate, non-discriminatory/retaliatory explanations provided. Moreover, the record is devoid of evidence of discriminatory or retaliatory animus.” Id. at 23. [email protected]

Related training:

The Good News: Filing Deadlines Matter

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By Ann Boehm, February 12, 2025

Quick facts:

  • When employees challenge agency actions, they must meet a filing deadline.
  • Missing the deadline is devastating to their case.
  • The deadlines differ, depending on whether they are for a grievance, discrimination complaint, or MSPB appeal.

In my very first real lawyer job – law clerk to a United States Court of Appeals judge – I quickly learned the importance of timely filings. My co-clerk was obsessed with combing through each case file to look for any jurisdictional issues. I recall when he rejoiced upon finding a party’s appeal to be untimely. The case would be dismissed as a result. The court did not have jurisdiction.

Lesson learned. Filing deadlines matter.

When an employee challenges an agency action – through a grievance, discrimination complaint, or Merit Systems Protection Board appeal – there are filing deadlines. Missing a deadline can mean losing a case.

Here are some key filing deadlines to consider:

Grievances: Parties must double-check the agency’s administrative grievance procedure or the collective bargaining agreement’s negotiated grievance procedures for the filing deadlines. The times for filing vary.

Discrimination complaints: An employee must contact an equal employment opportunity counselor within 45 days from the day the discrimination occurred, and then must file a formal complaint within 15 days of receipt of the counselor’s Notice of Right to File Formal Complaint. https://www.eeoc.gov/federal-sector/overview-federal-sector-eeo-complaint-process

Merit Systems Protection Board appeal: An appeal must be filed within 30 calendar days of the effective date of the action, if any, or within 30 calendar days after the date of receipt of the agency’s decision, whichever is later.  https://www.mspb.gov/appeals/appeals.htm

Whistleblower complaint: There is no specific deadline for reporting alleged whistleblower retaliation to the Office of Special Counsel. The general timing consideration for whistleblowers is whether the retaliatory action took place within a time that would lead a reasonable person to conclude that the disclosure contributed to the personnel action.  Typically, actions that occur within two years of the protected disclosure satisfy this test.

For agency advocates, finding a missed filing deadline can result in an easy agency victory.  For employees, missing a filing deadline can result in an unnecessary loss. Timelines matter. Paying attention to them matters. And that’s all Good News. [email protected]

Related training:

Supervisor Was Once Left Off Emails, Now She’s Getting Back Pay

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By Dan Gephart, February 12, 2025

Quick facts:

  • An assistant specialist failed to carbon copy her first-line supervisor on emails to agency leadership.
  • A commander ordered the supervisor to reveal how she found out she was being left off emails, but she refused.
  • The agency suspended the appellant but the MSPB overturned the suspension, finding the agency’s misconduct investigation of the appellant was motivated by whistleblower retaliation.

As if there weren’t already more than enough topics that divide us, I found another one recently. When scrolling through a social media site, I found a passionate debate about the “carbon copy” field on emails.

We are being overrun with emails, one poster claimed, and it’s because too many people are unnecessarily getting carbon copied on emails. Another poster called the claim “nonsense” and argued that “cc” is a great tool for keeping colleagues up to date.

I don’t know where the special assistant in Young v. Department of Homeland Security, 2024 MSPB 19 (Dec. 10, 2024) stands on the giant email debate, but we do know one thing: She communicated regularly with her supervisor’s boss without cc:ing said supervisor.

And that eventually led to a huge mess, including claims of reprisal and whistleblowing. We’re going to focus on the appellant in Young, but it’s so complicated we need to start with a cast of characters:

  1. The appellant. This person was a GS-15 supervisory field operation specialist and served as chief of staff to the commander.
  2. The special assistant. This individual reported directly to the appellant. She was the one who left the appellant off email communications.
  3. The mission support specialist. This person also reported directly to the appellant.
  4. The commander. This person supervised the appellant.

At some point, the appellant became aware she was being left off emails between the special assistant and agency leadership, despite previous directives to include her in all such communications. The appellant admonished the special assistant and directed her to draft a memorandum to explain how she would remedy the issue.

Instead, the special assistant told the commander what happened.

The commander reprimanded the appellant and ordered her to identify the individual who “provided the information to her concerning the special assistant’s communications.” The appellant refused, contending that the individual was a whistleblower.

In a separate action, the Commander reassigned the mission support specialist from the appellant’s supervision. Per footnotes in the decision, the record suggestions the mission support specialist is the person who told the appellant she was being left off emails.

Cue the complaints.

The appellant filed two complaints with the Office of Special Counsel (OSC), one related to the commander’s “verbal admonishment for insubordination for failing to obey his order to disclose the name of the employee who informed the appellant of the communication issues with the special assistant” and the other an allegation of improper favoritism toward the special assistant by reassigning her to another supervisor.

The appellant took her allegations to the agency’s Office of Inspector General (OIG). The appellant informed the commander, via a memorandum, that she felt he had committed prohibited personnel practices.

In a completely separate action, the mission support specialist filed an EEO complaint, alleging the commander improperly temporarily reassigned her and denied her training.

And now, the weaving of the web gets further tangled.

The appellant served as a management official in the mediation of the mission support specialist’s EEO complaint, which resulted in a settlement agreement. All it needed was the approval of a higher-level official.  That never came, as the commander informed the EEO office that the settlement agreement was not approved.

You still following?

The commander contacted the OIG, alleging the appellant did not inform him of the EEO complaint or discuss with him, as previously instructed, whether it was OK to engage in mediation. The commander further alleged the mission support specialist was a friend of the appellant and used the EEO process to “obtain training and a promotion for the mission support specialist in circumvention of agency rules.”

The commander’s action led to an investigation by the Office of Professional Responsibility (OPR). Soon after, the agency discipline review board proposed the appellant’s removal based on the charges of an appearance of a conflict of interest, failure to follow supervisory instructions, and lack of candor. The deciding official issued a decision sustaining the appearance of a conflict of interest and failure to follow supervisory instructions charges, but not the lack of candor charge. The official mitigated the penalty to a 15-day suspension. During this time, the commander was replaced, and the new commander reassigned the appellant.

All this led to the MSPB, where the appellant alleged the agency’s decision to suspend her for 15 days and reassign her constituted reprisal for her protected disclosures and protected activity. The administrative judge found the appellant met her burden of proving by preponderant evidence she made a protected disclosure and engaged in protected activity that was a contributing factor in the agency’s decisions to suspend and reassign her. However, the AJ also found the agency proved by clear and convincing evidence that it would have suspended and reassigned her absent her protected disclosure.

After considering the Carr factors, the Board was “not left with the firm belief that the agency would have initiated an investigation into the appellant absent her protected whistleblowing activity.” It continued:

Although the Commander had some sound reasons to request an investigation, his motive to retaliate was strong, and the agency failed to present evidence showing that it reported and initiated investigations into non-whistleblower employees for similar conduct. Therefore, we find that the agency failed to prove by clear and convincing evidence that it would have reported and initiated an investigation into the appellant’s conduct absent her whistleblowing. Accordingly, we grant the appellant’s request for corrective action with respect to her claim of a retaliatory investigation and her subsequent suspension.

The Board ordered the agency to cancel the appellant’s 15-day suspension and pay back pay, interest on back pay, and other benefits.

You’ve undoubtedly heard the phrase: This meeting could’ve been an email. Well, this case could’ve ended at an email, if only the appellant was carbon copied. [email protected]

Related training:

Is COVID Still Compensable? Welcome to the New Normal

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By Frank Ferreri, February 12, 2025

Quick facts:

  • An HHS optometrist came down with COVID-19 and felt confident she caught the virus at work.
  • Her claim was judged under new standards that made the bar for establishing COVID compensability tougher to meet than during the height of the pandemic.
  • The optometrist’s evidence consisted of a doctor’s statement that she had COVID-19 but did not include anything about a laboratory test, and ECAB found insufficient evidence and denied her claim.

Remember when everything about COVID-19 was dubbed the “new normal?” Since early 2023, as far as Federal workers’ compensation is concerned, coronavirus-related claims are just ordinary normal, as evidenced by J.W. and Department of Health & Human Services, No. 24-0028 (Dec. 20, 2024). In this case, the Employees’ Compensation Appeals Board (ECAB) addressed the medical evidence it takes for an employee to show her COVID infection was a compensable workplace injury.

The employee, an optometrist, filed a traumatic injury claim. She alleged she sustained COVID-19 on Feb. 24, 2023, while in the performance of duty. She had initial body aches on that day and stopped working until March 6, 2023.  A doctor’s report confirmed the optometrist had a positive COVID-19 test on March 1, 2023.

The Office of Workers’ Compensation Programs (OWCP) converted the claim to an occupational disease claim because there was no clear, identifiable incident or incidents over a single day or work shift that she alleged to have caused the diagnosed COVID-19 condition. OWCP also informed the optometrist of the factual and medical evidence she needed to support her claim.

In response, the optometrist provided a statement noting:

  • “A few” conversations she had with a laboratory supervisor who also tested positive for COVID-19.
  • While performing optometry examinations, she was in close proximity to patients and sat within arm’s reach, and sometimes closer, for a prolonged period of time.
  • The agency’s optometry department had 119 patients in February 2023.
  • Her symptoms first occurred on Feb. 24, 2023, and for the two weeks prior, she did not leave her house other than to go to work.
  • No family members developed COVID-19.
  • The optometrist’s supervisor called her several times to advise the COVID positivity rate was “very high” at the employing establishment and recommended that she get tested.

OWCP denied the optometrist’s occupational disease claim, finding she had not submitted medical evidence sufficient to establish a diagnosis of COVID-19 in connection with the accepted employment exposure. The employee took her case before ECAB.

What’s the rule?

Per FECA Bulletin No. 23-02 (December 15, 2022), to establish a Federal workers’ compensation claim for COVID-19 diagnosed after Jan. 27, 2023, a claimant must provide:

  1. Evidence of a COVID-19 diagnosis.
  2. Evidence that establishes that the claimant actually experienced the employment incidents or factors alleged to have occurred.
  3. Evidence that the alleged incidents or factors occurred in the claimant’s performance of duty.
  4. Evidence that the COVID-19 condition was found by a physician to be causally related to the accepted employment incidents or factors.

That’s not all, though. A claimant must submit either of the following:

  1. A positive polymerase chain reaction or antigen COVID-19 test result.
  2. A positive antibody test result, together with contemporaneous medical evidence that the claimant had documented symptoms of or was treated for COVID-19 by a physician.

If no positive laboratory test is available, the claimant must submit a COVID-19 diagnosis from a physician, together with a rationalized medical opinion supporting the diagnosis and an explanation as to why a positive laboratory test is not available.

In support of her claim, the optometrist submitted a doctor’s report, which indicated the optometrist had a positive COVID-19 test. However, without explaining why a positive laboratory test result was unavailable, the doctor’s statement was insufficient to establish a COVID-19 diagnosis under the FECA Bulletin No. 23-02.

Thus, ECAB ruled against the optometrist. However, it granted her the opportunity to submit new evidence or argument with a written request for reconsideration.

When it comes to COVID, a workers’ compensation claim doesn’t enjoy the special status it once did. Also, there is no presumption an infection was due to employment. Instead, what a claimant should be prepared to do – and what an agency should defend on – is determine whether the evidence complies with FECA Bulletin No. 23-02. [email protected]

Related training: