As Wiley Always Said, ‘Nexus is NOT a Hair Product’

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By Deborah J. Hopkins, June 10, 2024

I used this article’s headline in a recent training class on Advanced MSPB Law: Navigating Complex Issues (next held July 9-11). It was a favorite used by FELTG Founder Bill Wiley when explaining the nexus requirement in agency cases involving discipline for employee misconduct.

An agency must establish three requirements when defending an adverse action against an employee under 5 U.S.C. chapter 75:

  • It must prove by a preponderance of the evidence that the conduct occurred as charged;
  • It must establish a nexus between that conduct and the efficiency of the service; and
  • It must demonstrate that the penalty imposed is reasonable.

5 U.S.C. §§ 7513(a), 7701(c)(1)(B); 5 C.F.R. 752.403; Pope v. USPS, 114 F.3d 1144, 1147 (Fed. Cir. 1997).

A nexus, generally defined, is a link or connection between the misconduct and the employee’s job or the workplace; as seen under the second requirement above, the concept of nexus is often referred to as the “efficiency of the service” standard.

As we’ve discussed in a previous article, the MSPB generally recognizes three independent means by which an agency can show a nexus when the agency wants to impose discipline, particularly for off-duty misconduct:

  • A rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct (for example, cases involving harm against children);
  • The misconduct affects the employee’s or co-workers’ job performance, or management’s trust and confidence in the employee’s job performance (for example, management has lost trust in the employee’s ability to make good decisions because the employee was arrested for driving under the influence of alcohol); or
  • The misconduct interfered with or adversely affected the agency’s mission (for example, an employee of an agency’s morale, welfare and recreation division has an affair with an officer’s wife while the officer is deployed overseas).

A lead case on nexus for off-duty conduct, that every agency rep and union official should read, is Kruger v. DOJ, 32 M.S.P.R. 71 (Jan. 8, 1987). The case involved three Federal Bureau of Prisons employees who were reported to be smoking marijuana outside a local bar. After the agency’s investigation confirmed the events as alleged, the employees were removed on charges of “possession and use of marijuana on July 10, 1985, outside a local public tavern while off duty.” Id. at 74.

The agency justified the removal because, in part “as correctional officers, appellants have close contact with inmates and they are responsible for protecting property and inmate safety, enforcing security policies, regulations, and laws (including the laws proscribing narcotics and contraband), and assisting with inmate rehabilitation.” Id. at 74-75.

On nexus, DOJ showed that the appellants’ use of marijuana impacted agency mission because it was “antithetical to the agency’s law enforcement and rehabilitative programs that they are responsible for monitoring.” Id. The agency also showed that the notoriety of the conduct by the public “would impair the efficiency of the agency by undermining public confidence in it, thereby making it harder for the agency’s other workers to perform their jobs effectively.” Id.

The Board found the agency showed by preponderant evidence there was a nexus linking the off-duty misconduct with the efficiency of the service. It also, however, found removal was unreasonable and relied on the following Douglas factors in justifying a mitigation to a 60-day suspension:

  • None of the appellants had any prior discipline.
  • Length of service: Kruger had approximately 12 years of service and the other two appellants each had seven years.
  • The appellants all had either fully successful or outstanding performance.
  • The appellants’ truthful admissions of their misconduct on initial inquiry by the agency “indicate that they will not subsequently act in a dishonest or otherwise improper manner with the agency.” at 77.
  • The public was not aware of the events since no criminal charges were filed.

Shocking, perhaps, considering this was the 1980s and marijuana laws were quite different (and much stricter) back then. Check out the case for yourself and let us know if you have any thoughts or questions. We always enjoy getting messages from you. [email protected]

 

The Good News: Reasonable Accommodation Requests Should Not Be Scary

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By Ann Modlin Boehm, June 10, 2024

Many supervisors panic when an employee requests a reasonable accommodation because of a disability. It does not need to be that way. Understanding the basics of the reasonable accommodation interactive process can help all involved – the supervisor, employee, and reasonable accommodation experts – do what is best for the employee and the agency.

My employee is claiming to be disabled.  How do I know if the employee is really disabled?

A disability is a physical or mental impairment that substantially limits one or more major life activities. Because of the Americans with Disabilities Act Amendments Act of 2008, the definition of “disability” is broadly construed. If it’s a close call the presumption is that an employee has a disability. If the disability and needed accommodation are not obvious, the employee may need to provide medical documentation to explain the nature of the disability and the functional limitations.

Many Federal employees have medical and physical impairments that meet the definition of disability. A list from the Department of Justice, Civil Rights Division, includes these examples of disabilities:

  • Cancer
  • Diabetes
  • Post-traumatic stress disorder
  • HIV
  • Autism
  • Cerebral palsy
  • Deafness or hearing loss
  • Blindness or low vision
  • Epilepsy
  • Mobility disabilities such as those requiring the use of a wheelchair, walker, or cane
  • Intellectual disabilities
  • Major depressive disorder
  • Traumatic brain injury

If my employee has a disability, do they need a reasonable accommodation?

Not necessarily. An employee with a disability has to be qualified for the position and able to perform the essential functions of the job with or without a reasonable accommodation.

Huh?

This is the important part of the interactive process, especially for supervisors. Many employees with disabilities can perform the essential functions of the job without an accommodation. Some employees cannot.

What are the essential functions of the position?

The EEOC’s regulations on reasonable accommodation explain “the essential functions are the fundamental duties of the position.” 29 C.F.R. 1630.2(n)(1). In our training classes on reasonable accommodation we refer to these at the “outcomes” of the job.

Does the EEOC have any more guidance on essential functions?

The regulations provide a list of reasons that a function may be considered essential:

“(i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.” 29 CFR 1630.2(n)(2).

The regulations also list evidence of whether a particular function is essential: “(i) The employer’s judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs.” 29 C.F.R. 1630.2(n)(3) (emphasis added).

Note the italicized language, above. As a supervisor, your input is significant in determining whether a job function is essential. Make sure you do an honest assessment. It is not an essential function just because you want a job performed a certain way.

My employee has not actually said “I need a reasonable accommodation.” Is it possible they requested one anyway?

It certainly is possible. The employee does not have to use any particular form or even use the words “reasonable accommodation.” What they need to do is let you know they need “an adjustment or change at work for a reason related to a medical condition.” EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, at p. 9 (Oct. 17, 2002) (Guidance).

Also, the request for an accommodation does not need to come from the employee. Someone else, like a relative or health care provider or friend, may make the request. Guidance, at p. 10.

How quickly do I need to address a request for reasonable accommodation?

The employer needs to act promptly! An undue delay can be disability discrimination. Guidance, at p. 17. If an employee requests reasonable accommodation, contact your reasonable accommodation coordinator immediately and get the process started.

Does my employee get to decide the reasonable accommodation?

The key word here is “reasonable” accommodation. The employee’s choice is considered, but as long as the accommodation is effective, it does not have to be the gold standard. Guidance, at 16.

The information provided here should help alleviate any panic associated with a request for reasonable accommodation. Remember that disability discrimination is illegal. As a supervisor, you are not expected to be an expert on reasonable accommodation, but you need to participate in the reasonable accommodation interactive process. Your agency has reasonable accommodation experts to help with this process. A reasonable accommodation request is not scary. And that’s Good News! [email protected]

[Editor’s note: FELTG’s annual webinar series on reasonable accommodation begins next month. Register now.]

When All Yell Breaks Loose: Rude Behavior and Discipline

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By Dan Gephart, June 10, 2024

On my morning coffee runs to Wawa, I drive by a pedestrian crosswalk and navigate a hectic parking lot that resembles a Richard Scarry book. This daily caffeine quest often reminds me there are two kinds of people in this world.

There’s the kind who say thank you when you hold a door open for them. These are the people who give you a nod and slightly pick up their pace when you let them cross in front of your car. Then there’s the other kind, who respond to your act of kindness with, well, nothing. No nod. No eye contact. No words of gratitude.

These rude folks aggravate me, even though I know they shouldn’t. But it’s a brief encounter. And once that coffee is securely in my hands, the lack of courtesy I encountered is long forgotten. Also, it’s a lower level of rudeness – one borne of self-absorption, not aggression.

But aggressive rudeness is out there. Just ask any retail clerk. And it’s in the Federal workplace, too, as recent decisions bear out. Unfortunately, there’s no latte or cappuccino available that’ll put these people out of your mind.

In Hornsby v. FHFA, DC-07520125-0576-I-2 (April 28, 2022) (NP), an employee was removed based upon 18 specifications of conduct unbecoming a Federal manager. This guy must be fun to sit next to on an airplane. In one meeting, he held up an email from another employee, who was also in the meeting, and said he found the email to be “[expletive] offensive.”

In this case, the Board sustained only five of the 18 specifications – but the meeting outburst was one of those sustained.

In Brooks v. Small Business Administration, DOCKET NUMBER SF-0752-23-0197-I-1, (Aug. 8, 2023), the MSPB administrative judge (AJ) sustained three specifications involving a loan specialist’s rude behavior. Those specifications involved emails that “impugn[s] the motives and character” of the loan specialist’s supervisor, and “levie[s] vague threats against her.”

Examples of those emails:

  • “I do not trust anything that you have to say because you’re not a credible person when you take into account what you were ‘willing’ to do against me without any real justification and or rationale. You’re (sic) morality and ethics are very questionable. And this too will come to light as well.”
  • “Obviously, you don’t care about what is right or wrong when you literally ignored the ‘facts’ of what I stated. Simply want to use your authority whether it’s right or wrong obviously doesn’t matter with you. And it continually shows in every way. Your time is indeed coming when you will have to be held ‘accountable’ to what you’ve done and continue to do against me.”
  • “I do not ‘personally’ want to review any 4th qtr, or any other year-end review with you because I do not trust anything that you have to say. You do not have any credibility with me.”

In Ikossi v. Department of Defense, DC-0752-17-0357-I-2 (April 10, 2024) (NP), the Board upheld the removal of a scientist on charges of conduct unbecoming and failure to follow instructions. The conduct unbecoming charge was bolstered by six specifications of rude, uncooperative, and unprofessional behavior.

In one of those instances, a supervisor and IT professional were assisting the scientist with reducing the size of her electronic mailbox and syncing her new computer. The scientist pointed her finger in the IT professional’s face and yelled at her. During a meeting to discuss a reasonable accommodation request for telework, the scientist yelled at an HR representative and then “jumped up and down.”

In another meeting, the scientist’s supervisor asked her to read the emails that were sent to her. According to the supervisor, the scientist replied:  “I am not going to read anything” and “You don’t know what you are doing.” When the supervisor attempted to read a printout of one of the emails, the employee grabbed them from supervisor’s hand and called her “stupid.”

In Salyer v. VA, DC 0752-17-0635-I-1 (May 20, 2024) (NP), the Board upheld an employee’s removal, which was supported by nine charges, including (you guessed it) a charge of conduct unbecoming. The appellant’s behavior is a textbook example of rude.

The employee would allegedly “yell” and “raise her voice” at employees. Most of the diatribes were aimed at subordinate employees, but at other times she raised her voice without directing the ire at anyone specifically. When someone told the appellant she needed to stop yelling, she replied: “I haven’t yelled, maybe I should start yelling so people know what my yelling is like.”

This kind of behavior is misconduct, and failure to address it will sink morale, make it harder to meet mission, and could eventually lead to harassment complaints.

In the Hornsby decision, the Board noted it has “frequently held that rude, discourteous, and unprofessional behavior in the workplace is outside the accepted standards of conduct reasonably expected by agencies and can be the subject of discipline.” As FELTG Instructor Ann Modlin Boehm told us last year – words and attitude matter. [email protected]

[Editor’s note: If you’re looking for more guidance on challenging conduct and performance issues, register for Advanced MSPB Law: Navigating Complex Issues on  July 9-11. Or bring FELTG directly to your agency to deliver our flagship UnCivil Servant class. Email [email protected] for more information.]

A Supervisor’s Negative Comments About EEO = Reprisal EVERY TIME

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By Deborah J. Hopkins, June 10, 2024

It is absolutely critical for Federal supervisors and managers to understand that engaging in protected EEO activity is a right for all Federal employees, regardless of the outcome of such activity. Throughout my years in the classroom, I’ve come across numerous supervisors who believe that if an EEO complaint is found to have no merit, then the employee has not engaged in protected activity. This couldn’t be further from the truth.

The Equal Employment Opportunity Commission for decades has held that comments which, on their face, discourage an employee from participating in the EEO complaint process can have a chilling effect on others, and as such nearly always amount to reprisal. See, e.g., Binseel v. Army, EEOC Req. No. 05970584 (Oct. 8, 1998), where the supervisor told the complainant that filing an EEO complaint was not the right approach to try to get a promotion.

Below are two more recent examples where the EEOC found reprisal because of a supervisor’s words about the EEO process:

Carlton T. v. USPS, EEOC App. No. 2019005495 (Nov. 16, 2020)

EEOC found a supervisor’s criticism of the manner in which the complainant filed EEO complaints constituted reprisal. Examples of the supervisor’s criticism included:

  • Telling the complainant he [the supervisor] thought it was “pretty sad” the complainant made up stories about people, and that this was why the complainant’s EEO complaints “never went anywhere, as nobody believed” him. at 9.
  • Telling the complainant, “you think you’re a specialist[,] but they reject all your [EEO complaints] because they’re all misspelled and have a lot of run-on sentences.”
  • In response to the complainant’s offer to assist a coworker in filing an EEO complaint, the supervisor told the complainant, “[t]he one who [is] stupid is you because you were pushing him [Complainant’s coworker] to file an EEO [complaint] against [S2][;] just because you can’t beat him you want somebody else to join in.”
  • Characterizing the complainant’s actions as “pathetic.”

Bert P. v. Army, EEOC App. No. 2020003846 (Nov. 15, 2021)

During the pre-complaint (informal) EEO process, a supervisor told the EEO Counselor “ … employees should have to pay to file an EEO complaint and only get it back if and when they may prevail.” Id. at 7.

The complainant originally saw a copy of the EEO Counselor’s draft report containing the comment. However, the comment was removed from the final report. The complainant testified that after seeing the supervisor’s comment in the draft report, the complainant thought the supervisor believed EEO “complaints are frivolous and [employees] ought to pay a fee so it would deter people from making complaints.” Id.

According to the case, the EEO Counselor removed the comment from the final report after being directed to do so by the EEO Manager. In its Final Agency Decision (FAD) the agency found that this comment amounted to per se retaliation because of its potential chilling effect on future would-be filers. The Commission agreed.

If you’re a supervisor or manager, it’s important to understand your role in the process from the very beginning. That’s why FELTG is offering a brand-new class on June 27 called The Supervisor’s Role in the EEO Counseling and Investigative Processes. In just two hours, we’ll cover everything from how to behave after an employee has claimed discrimination, to how to respond to an investigator’s written interrogatories. Plus, you can ask your questions and get answers in real time. You cannot afford to miss this event. [email protected]

After Going Through Legal Hoops, Fed’s Worker Comp Case Rebounds

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By Frank Ferreri, June 10, 2024

Anyone who’s hooped it up on the hardwood or the playgrounds for years and years has probably felt the aches and pains that come with being a middle-aged baller.

For a 57-year-old airway transportation systems specialist, however, a pesky basketball injury threatened his Federal workers’ compensation case in C.B. and Department of Transportation, Federal Aviation Administration, No. 21-0323 (ECAB April 18, 2024). Nevertheless, his use of  the stairs while traveling for work offered backing for his claim.

The specialist filed a traumatic injury claim, alleging he sustained left knee and ankle injuries while on temporary duty. On the CA-1, the specialist’s supervisor acknowledged the injury happened in the specialist’s performance of duty.

While being treated for the injury, the specialist said he injured his left ankle and knee the prior day while playing basketball, leading the agency to controvert the claim on the basis that the specialist was not in the performance of duty at the time of the injury.

The specialist submitted his doctor’s report, which stated he twisted his left knee and ankle while exercising, had undergone a left knee arthroscopy meniscectomy five or six years prior, and was asymptomatic until the day at issue.

The specialist submitted a statement that he injured his left knee and ankle while climbing six flights of stairs to his room from the hotel exercise facility early in the day and that he reinjured his left knee and ankle while shooting hoops in a fitness center later that evening. The specialist related that he was on travel status for training at the time of the injury.

In response, the agency said the specialist’s job was not associated with any physical fitness or medical requirements. Also, he was not participating in a supported or sponsored after-work activity at the time of the injury.

OWCP denied the claim. A representative of OWCP’s Branch of Hearings and Review affirmed the decision over the specialist’s argument that he was a rescue climber, had to maintain a level of physical fitness, and the agency was aware of it. Thus, the specialist appealed to the Employees’ Compensation Appeals Board.

The Applicable Law

The Federal Employees’ Compensation Act covers an employee 24 hours a day when the employee is on travel duty status and engaged in activities essential or incidental to such duties. The “general rule” regarding coverage of employees on travel duty status or temporary-duty assignments is that an employee whose work entails travel away from the employer’s premises is considered to be within the course of his employment continuously during the trip, except where there is a “distinct departure” on a personal errand. For an injury to be “in the course of employment,” ECAB has held that it must occur:

  • At a time when the employee may reasonably be said to be engaged in the agency’s business;
  • At a place where the employee may reasonably be expected to be in connection with his employment; and
  • While the employee was reasonably fulfilling the duties of his employment or engaged in something incidental thereto.

ECAB found that the specialist met his burden of proof to establish a traumatic incident in the performance of duty on the day in issue. ECAB noted:

  • The specialist injured himself on the stairs in his hotel.
  • The specialist’s activity at the hotel was reasonably incidental to the duties of the temporary assignment contemplated by the agency.

Because OWCP didn’t previously reach the question of whether the specialist sustained an injury causally related to the employment incident, ECAB sent the case back for a new decision.

The Takeaway

ECAB emphasized FECA covers an employee 24 hours a day when the employee is on TDY status, with that coverage disappearing when the employee engages in something that is not “reasonably incidental” to the duties of the temporary assignment.

In this case, going up and down stairs at a hotel was reasonably incidental to the specialist’s travel status due to agency-required training. Had it strictly been a basketball injury, it’s difficult to say how ECAB would have come down, and it would take more consideration of the evidence and applicable law to flesh out that case.

However, the “reasonably incidental” part of the ECAB’s conclusion in this case makes sense and provides a guideline to work with it: If an injury happens and that injury goes along with the employee’s assignment at hand, it could make for an easy layup of a workers’ compensation claim. [email protected]