Delays in Considering Accommodation Requests Can Cause Liability

,

By Deborah J. Hopkins, May 26, 2026

Details matter in reasonable accommodation (RA) cases, and when an employer unnecessarily delays considering or providing an accommodation to a qualified individual, it can create liability for the agency. Even more concerning, a delay can also exacerbate an employee’s medical conditions.

Take, for example, Marjorie F. v. VA, EEOC App. No. 2022001439 (June 14, 2023). The complainant, a GS-6 Advanced Medical Support Assistant, had Adult ADD, military service-related disabilities including PTSD, MST, and anxiety, and a musculoskeletal condition. In October 2020, she requested the accommodation of a quiet work environment, which she said would allow her to successfully perform her duties within her medical restrictions.

The agency took nearly six weeks to even acknowledge the RA request, did not consider any interim accommodations, and on January 12, 2021, denied the complainant’s request to work in a quiet environment.

According to the supervisor, the complainant’s job required some interaction with others, and if the complainant were permitted to work alone she could not perform the essential functions of her position. This, the supervisor stated, would cause an operational hardship at the office. Id. At 6.

The complainant argued that agency mischaracterized her RA request and that her request to work in a quiet area was actually:

 

Geared toward having individual, uninterrupted time to complete office/computer work (i.e., reports, messaging) to avoid exacerbation of [her] disabilities….at no point did she decline face-to-face interactions with her patients or colleagues. Moreover, Complainant did not request no face-to-face interactions as part of her accommodation.

Id.

The complainant claimed that the delay in processing her request, combined with the denial of the request, exacerbated her medical conditions because she was forced to work in a loud office environment where she could not successfully complete her work, despite the facility where she was assigned having over 20 empty offices. Id. at 7.

When the EEOC determines whether an agency’s delay in providing an RA was justified, it will consider:

  1. the reason(s) for delay,
  2. the length of the delay,
  3. how much the individual with a disability and the employer each contributed to the delay,
  4. what the employer was doing during the delay, and
  5. whether the required accommodation was simple or complex to provide.

Id. at 3-4.

Here, the EEOC found the agency’s delay was inexcusable, and the agency provided no reason why it should have taken nearly 6 weeks to even acknowledge the request, and another month to provide a response. Id. At 5. The agency also failed to demonstrate that the complainant’s request would not have been effective or would have caused an undue hardship for the agency. Id. At 7. Therefore, EEOC found the agency failed to act in good faith in processing and considering the RA request, and violated the law in failing to do so. [email protected]

Related training:

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Why We Need a Third MSPB Member Right Now

,

By Deborah J. Hopkins, May 5, 2026

Longtime FELTG readers remember the palpable excitement in March 2022 when, after over five years without a quorum the Senate confirmed two members to the U.S. Merit Systems Protection Board: Raymond Limon and Tristan Leavitt. With two of three members in place a quorum was restored, Petitions for Review could once again be decided, and the nearly 3,800-case backlog was finally being addressed. In June of 2022, Cathy Harris was confirmed and the Board once again had a full slate of members.

Today, we have two members: Henry Kerner who was confirmed in June 2024, and James Woodruff II who was confirmed in October 2025 (Leavitt and Limon’s terms both expired). Harris, whom President Trump fired last February three years before the end of her term, recently requested certiorari from the Supreme Court over her removal, but pending the outcome of her litigation she remains fired per an appeals court order.

Despite the bigger legal questions involving Harris’s removal, if two is a quorum, why do we desperately need another member at MSPB? Well, it relates to who these two Board members are, and their work history at previous agencies.

Kerner was the Special Counsel at the United States office of Special Counsel (OSC) from 2017-2023, which means he was directly or indirectly involved in cases involving allegations of whistleblower retaliation and prohibited personnel practices for 6 years prior to his move to MSPB. Many complaints initially filed at OSC end up before MSPB. In typical years, allegations of whistleblower retaliation via an Individual Right of Action or an Otherwise Appealable Action might comprise 10-25 percent of Board appeals – so, hundreds of cases.

Woodruff has work history at the Air Force, which causes him to recuse whenever there’s a case involving an Air Force employee.

So, what happens when one member votes and one member recuses? The administrative judge’s decision stands, effectively eliminating an entire level of review. In addition, the case cannot become precedent.

If we have a third Board member – whether Harris is reinstated or the President nominates and the Senate confirms someone else – then even if there is a conflict with Kerner or Woodruff, two members could still vote and make MSPB case law.

We reached out to MSPB and asked about the recusals, and Zac Kurs from Public Affairs was kind enough to reply. Here’s his full statement from April 28, 2026:

Recent media reports on this topic have exaggerated the number of recusals by calculating a recusal rate that appears high. The recent number of recusals is artificially inflated and will not be reflected in MSPB’s year-end case numbers. This is because the Board cannot issue a “lack of quorum order” until the Board has a quorum. So, the recusal cases that built up during the Board’s most recent lack of quorum period [after Harris was fired and before Woodruff was sworn in] were front-loaded and issued quickly once the Board’s quorum was restored. In reality, the number of recusal cases is steadily decreasing as more time passes from when Mr. Kerner was Special Counsel and from when Member Woodruff was with the Department of Air Force.

Expediting the lack of quorum order cases is in the appellants’ interest. The order makes the AJ’s decision final so the appellant can demonstrate administrative exhaustion and seek relief through the Federal Circuit Court of Appeals, if they so choose.

When Acting Chairman Kerner was sworn in as Member in June 2024 during the prior administration, in consultation with agency ethics advisors, he decided that he would recuse from any appeal in which the appellant had a matter pending before OSC while Mr. Kerner was Special Counsel (October 30, 2017 – October 23, 2023).  He also decided to recuse from any other appeal by an appellant that references, in any way, a matter pending with OSC during the relevant time period.  Mr. Kerner’s recusal policy did not change upon the change in administration last year.

Most of the appeals from which Mr. Kerner has recused involve whistleblower claims because those are the ones first filed with OSC. If OSC does not take action or provide relief, then the appellant can file an Individual Right of Action appeal (IRA) with MSPB. The intent of this recusal policy is to avoid any perception of a potential conflict of interest.  If an employee had a complaint pending with OSC during Mr. Kerner’s tenure there, and OSC did not provide relief, that employee might believe that Mr. Kerner was conflicted from then deciding his or her appeal as a Board member.

The MSPB has been through so much disruption in the past near-decade, we want to send a special shout out to its employees who have endured, as well as the thousands of appellants and representatives who have also withstood all the ups and downs. [email protected]

Related training:

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Enough Already: Workplace Sexual Harassment by Supervisors Remains Rampant

,

By Deborah J. Hopkins, April 28, 2026

Workplace sexual harassment is widespread in this country. While the latest headlines have focused on members of Congress accused of sexual misconduct and sexual assault against staffers, these behaviors are certainly not confined to Capitol Hill.

For decades the law has said that unwelcome conduct based on sex is off limits in the workplace. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Yet here we are again – or should I say, still.

Consider Stephany K. v DOD, EEOC App. No. 2021003668 (Nov. 6, 2023). The complainant, a WG-4 Store Worker at the Fort Campbell Commissary, alleged harassment based on sex after the Assistant Commissary Officer (Assistant CO) subjected her to sexual propositions, unwanted physical contact, comments of a sexual nature and comments focused on her body, which ultimately forced her to resign. Id. at 2.

Here’s a sampling of the Assistant CO’s conduct:

  • Made sexual remarks to the complainant including, “I’m getting thick.”
  • Asked the complainant whether she had a sweetheart because “[her] bottom was growing.”
  • Hit the complainant on the buttocks as they were leaving his office. After she told him it made her uncomfortable, he said he wouldn’t do it again, but he just had an urge to feel her bottom.
  • On another occasion swatted the complainant’s bottom, then cupped it, and told her not to report him.
  • Told the complainant she was beautiful and not to flirt with the drivers.
  • Told the complainant she wasn’t getting pleased right and if she wanted “him to kiss [her] down below just let him know.”
  • Asked the complainant when was the last time she was “pleased,” and that he could please her because his wife was moving to another state.
  • Called the complainant on her work phone and asked her if she was thinking about coming over because his wife was gone and “now was the time.”

Id.

This caused the complaint’s mental health to decline such that she had a mental breakdown and had to be observed for 72 hours. Upon her return to work she reported the Assistant CO’s behavior to a manager, but because the manager took no action, the complainant found the working conditions intolerable and resigned a few weeks later. Id. at 3.

The manager who received the allegations revealed she had noticed a change in the complainant, including the complainant’s hysterical behavior and choice to start wearing layers of clothes. The manager also said she “did not report it or take any action because Complainant did not ask her to initiate an inquiry.” Id. The Final Agency Decision found the complainant was not subjected to unlawful harassment, so the complainant appealed to EEOC. Id.

According to the Commission:

We find that the Agency’s decision erred in concluding that Complainant did not establish that she was subjected to sexual harassment by the Assistant CO. The record indicates that during the course of Complainant’s employment at the Agency, the Assistant CO subjected Complainant to repeated and frequent sexual innuendos and statements, which included unwanted physical touching as Complainant alleged there were at least two different incidents where the Assistant CO touched her buttocks. … The record further supports that the Assistant CO made inappropriate comments to Complainant which included calling her on the store phone and telling her to come over to his house because his wife was gone. We find that these actions were sufficiently severe and pervasive to constitute an abusive work environment.

Id. at 6.

The Commission also noted that the Assistant CO was second in command in the workplace and told the complainant more than once not to report him. Despite the Assistant CO’s testimony denying the allegations, the Commission found the complainant’s version of events supported by preponderant evidence. Id. at 6.

The agency argued it should not be liable for damages because it removed the Assistant CO after receiving the harassment allegations, but EEOC disagreed because:

  • The Assistant CO was the appellant’s fourth-line supervisor,
  • The manager who received the allegations did not report the harassment,
  • The agency took no corrective action, and
  • The Assistant CO’s removal did not occur until months after the allegations were made.

Id. at 7-8.

The EEOC also found that “a reasonable person would have found these working conditions to be intolerable and therefore, Complainant has established that she was subjected to constructive discharge.” Id. at 9.

While the main problem here is the Assistant CO’s inappropriate behavior, the agency also made countless mistakes along the way, which cost it not only back pay, compensatory damages, and attorney fees – but also caused harm to the complainant, which sadly can never be undone. [email protected]

Related training

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

A Missed Drug Test Meets Beltway Traffic: A Case for Penalty Mitigation

,

By Deborah J. Hopkins, March 31, 2026

Usually, when an employee misses a required drug test, it’s a big problem – and in most cases, a removable offense. But what happens if the employee misses the test largely because of intervening circumstances out of her control?

Consider Briscoe v. DOJ, DC-0752-23-0665-I-1 (Nov. 20, 2025)(NP). The appellant was a GS-13 Program Analyst for the Drug Enforcement Administration (DEA), and her official tour of duty was 6:30 a.m. to 3:00 p.m. Id. at 2. But because the appellant had significant caregiving responsibilities for her mother and stepfather, her first-line supervisor informally allowed her to telework at the beginning of her day, then arrive at the office later in the day to finish her shift. Id.

On September 19, 2022, the appellant was notified that she had been selected to take a random drug test the following day between 8:00 a.m. and 9:00 a.m. at her agency worksite; her second-line supervisor called her that same evening to stress the importance of an on-time arrival for the test. Id. The appellant requested for a later drug test because of her caregiving schedule, but the second-line supervisor said no.

On September 20, the day of the drug test, the appellant attempted to get coverage for her family members earlier in the day so she could arrive for the test on time, but was unable to do so. She left for work shortly after 8:00 a.m., once a home healthcare worker arrived, but encountered extreme traffic. At 8:34 a.m. she texted her status to her first-line supervisor, and at 8:45 a.m. texted her second-line supervisor that she was not going to make it to work by 9:00 a.m. Id. at 4.

The appellant arrived at work around 10:00 a.m. and went immediately to the health unit for her drug test, but the individual who performed drug tests had already left. Id. Because no alternative option existed for her drug test, the appellant informed her first- and second-line supervisors that she had missed it. Id.

As a result, the agency removed the appellant for “failure to follow written or oral instructions for missing the September 20, 2022, drug test.” Id. On appeal the administrative judge (AJ) upheld the agency’s removal. The appellant filed a Petition for Review (PFR), arguing the agency did not consider the mitigating factors; and the Board agreed, finding that the deciding official did not properly consider several relevant mitigating factors. Id. at 7.

Mitigating Factors

  • The appellant’s conduct was neither intentional nor malicious – she missed the test due to circumstances that were largely beyond her control.
  • The appellant’s caregiving responsibilities were well-known to the agency, and her schedule had been accommodated accordingly.
  • During his call with the appellant the night prior to the drug test, the second-line supervisor told her he would do “everything” he could do to help, including personally going to her mother’s house to help. Yet, after the appellant expressed concerns about her mother’s care and asked if she could take the random drug test a bit later, he told her that she needed to make arrangements, and did not actually offer an alternative solution.
  • Although the deciding official believed the appellant made light of the situation by making a “joke” about being escorted from the building after missing the test, the Board found the appellant made the comment out of nervousness and frustration.
  • The appellant consistently took accountability and expressed remorse for missing the drug test and attempted to mitigate her offense by asking if she could go to the contractor’s site to take a drug test, but was told that she could not do so.
  • One month prior to the appellant’s removal, the same deciding official mitigated another employee’s proposed removal to a 90-day suspension after she missed a random drug test, because she did not have access to the car that she shared with her mother. The comparator also communicated with her supervisors, showed remorse and accepted responsibility, and took initiative by getting a drug test from a private clinic, even though it was not an acceptable alternative.

Id. at 7-12.

The Board mitigated the removal to a 90-day suspension based on the unconsidered mitigating factors, plus the appellant’s 34-years of service, excellent performance ratings, and lack of disciplinary record. Id. at 12.

While the aggravating factors usually determine the outcome of a penalty assessment, the mitigating factors matter more than you may realize. [email protected]

Related training:

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

A Rude Supervisor ≠ a Hostile Work Environment

,

By Deborah J. Hopkins, March 24, 2026

It’s a hot topic yet again in 2026 – workplace harassment. Although the EEOC recently rescinded its 2024 enforcement guidance,harassment complaints haven’t stopped, and anti-discrimination statutes, regulations, and case law remain in place.

While it’s not difficult for an employee to file a complaint alleging that harassment has created a hostile work environment, the vast majority of complaints fail because the complainant is unable to prove all of the required elements:

  • He is a member of a statutorily protected class;
  • He was subjected to unwelcome conduct related to his protected class;
  • The harassment complained of was based on his protected class;
  • The harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and
  • There is a basis for imputing liability to the employer.

See, e.g., Humphrey v. USPS, EEOC App. No. 01965238 (Oct. 16, 1998).

Consider three recent cases from the EEOC where the alleged supervisory conduct was unwelcome, and maybe even unprofessional, but the Commission found the agencies were not liable for unlawful harassment.

1. A supervisor’s rude tone didn’t violate the law.

Herbert M. v. USPS, EEOC App. No. 2025000517 (Apr. 16, 2025)

The complainant alleged unlawful harassment after a supervisor asked him the same question about a work assignment three times in a rude and condescending tone, and otherwise spoke disrespectfully toward him.

Of those allegations, EEOC said, “Routine instructions directing employees to perform work within their crafts and job descriptions or to express a preference for a different policy or practice than the one implemented by management do not rise to the level of creating a hostile work environment.” Id. at 6-7.

The complainant also alleged that the agency harassed him when it initiated an investigative interview; the Commission held that investigative interviews alone do not sufficiently render an employee aggrieved unless they result in some concrete action. Id. at 7.

2. A manager’s “verbal abuse” toward a subordinate wasn’t unlawful harassment.

Valentine P. v. USPS, EEOC App. No. 2025000616 (Feb. 25, 2025)

The complainant alleged that a manager abused and intimidated him when he screamed at him in front of others on the workroom floor.

The Commission said, “While we understand how Complainant felt such action to be unprofessional, rude and humiliating, we have routinely rejected allegations describing one or a few isolated incidents of ‘verbal abuse’ as insufficient to establish a harassment/hostile work environment.” Id. at 5.

3. A supervisor’s dismissive tone was not linked to an EEO category, therefore it was not unlawful harassment.

Adena D. v. VA, EEOC App. No. 2023004927 (Apr. 15, 2025)

The complainant alleged her supervisor created a hostile work environment when, among other things, the supervisor rolled her neck; clicked her nails; and spoke to the complainant dismissively.

EEOC reiterated its position that personality conflicts, general workplace disputes, and trivial and petty annoyances, while uncomfortable, do not rise to the level of unlawful harassment. In addition, there was no link between the supervisor’s alleged actions and the complainant’s protected EEO category. Id. at 15.

While some of these cases may indicate there’s a supervisor who needs to work on his or her professional skills, and while some of these actions may violate an agency’s anti-harassment policy, an agency is not liable for unlawful harassment just because there’s a personality conflict between a supervisor and a subordinate. [email protected]

Related training

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Alleged Use of the N-word at Work Leads to Hostile Work Environment Claim – But No Liability

,

By Deborah J. Hopkins, March 10, 2026

In allegations of workplace EEO harassment, the details matter. Consider a recent EEOC decision, Terrance S. v. USPS, EEOC App. No. 2025004452 (Dec. 15, 2025), where the complainant, a Carrier Technician in Garland, TX, alleged he was harassed on the basis of race (African American) when his Acting Supervisor, an African American female, called him the N-word on three separate occasions. Id. at 1.

According to the case:

The incidents stemmed from Complainant insisting Acting Supervisor complete some union paperwork, challenging his route that day, and following Acting Supervisor around the postal facility. The AJ heard testimony and evidence from Complainant and two other employees that Acting Supervisor stated one time to Complainant after Complainant got in Acting Supervisor’s personal space, “n—a [racial slur], get out of my face.”

Alternatively, Acting Supervisor testified this was false and stated as an African American female with three sons, she would never have used that racial slur. Other witnesses supported the claim Complainant was harassing Acting Supervisor and did not hear the alleged racial slur. Acting Supervisor stated it was Complainant who used racial slurs, not her.

Id. at 5-6.

A quick review of foundational law: To establish a prima facie case of harassment, the complainant must prove, by a preponderance of the evidence:

  1. that he is a member of a statutorily protected class;
  2. that he was subjected to unwelcome conduct related to his protected class;
  3. that the harassment complained of was based on his protected class;
  4. that the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and
  5. that there is a basis for imputing liability to the employer.

Id. at 4.

Unless the unwelcome conduct is very severe, a single incident or a group of isolated incidents will generally not rise to the level of creating a hostile work environment. See James v. HHS, EEOC Req. No. 05940327 (Sept. 20, 1994).

Back to the case. After receiving the complaint, the agency:

  1. Assigned Acting Supervisor to a different facility during the investigation;
  2. Issued Acting Supervisor a Letter of Instruction;
  3. Gave Complainant an Investigation Outcome Letter;
  4. Delivered a standup talk to employees “about the ‘n’ word and why it’s not ok to use slurs at work” and dispersed a document entitled, “Dignity and Respect: Watch your Language”; and
  5. When Acting Supervisor returned to the original work facility, management placed her in her regular carrier position and relieved her of her Acting Supervisor duties.

Id. at 5-6.

The EEOC held that, while both sides presented compelling testimony at hearing, because the agency took immediate action to address the incident and prevent future incidents of the same nature, there was no basis to impute liability for the Acting Supervisor’s actions, even if true. Id. at 8. Therefore, the complainant did not prevail on his harassment claim.

Other cases involving the use of the N-word have resulted in a finding of agency liability (see, e.g., Whidbee v. Navy, EEOC App. No. 01A40193 (Mar. 31, 2005)(agency subjected the complainant to a hostile work environment when a supervisor used the N-word in the complainant’s presence and at least once in reference to the complainant). As we said at the beginning, the details matter. [email protected]

Related training

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

No Reprisal Despite a Complainant’s Job Offer Being Withdrawn After She Opposed Alleged Discriminatory Practices

,

By Deborah J. Hopkins, February 24, 2026

A few days ago during a compliance training on EEO reprisal, the discussion turned to whether there was ever a time where anagency’s “adverse” treatment of a complainant was found NOT to be reprisal, even when that adverse treatment was directly connected to a complainant’s EEO activity.

A recent case explored that very topic, Remona P. v. IHS, EEOC App. No  2025000727 (Dec. 11, 2025). Let’s explore the details.

Complainant’s Argument

On July 27, 2023, the complainant, a Supervisory Clinical Nurse, filed an EEO complaint alleging reprisal for protected EEO activity when on May 19, 2023, the Acting Chief Executive Officer (CEO) and the Director of Nursing (Director) told her that the agency had rescinded its tentative offer for a new position Assistant Director of Nursing. According to the complainant the agency rescinded the offer because she “opposed discriminatory practices in writing.” Id. at 1.

The complainant explained that after receiving the tentative offer she was sent a Service Agreement to sign, after it had already been signed by four management officials. When the complainant signed it, she added this statement to the bottom of the document: “I agree to these terms with the exception of bullying, harassment, discrimination or any other illegal activities or conduct towards me or witnessed by me during the one year period.” Id. at 2.

She returned this Service Agreement to HR, and alleged that shortly thereafter her tentative offer was rescinded because management “saw [her] as someone predisposed to engage in EEO activity.” Id.

Agency’s Argument

An agency HR Specialist stated that the complainant had modified two official government forms after they had already been signed by management officials, and the HR Specialist sent the modified forms to those officials to check whether they approved of the complainant’s additions. Id. at 2-3.

Two of the officials – the Director and the CEO – described the complainant’s amendment to the forms as deceitful, lacking in candor, and dishonest. According to the Director, “it gave the impression that the officials had agreed to the modifications,” and according to the CEO “the way she modified the agreement made it appear as if all the parties had mutually agreed to the statement which they had not.” Id. The CEO also noted that he was particularly concerned because “accurate documentation was an important part of the role Complainant would be filling.” Id.

EEOC’s Decision

On appeal the Commission sided with the agency, finding the rescission of the job offer was not retaliatory, despite that the content of the complainant’s unauthorized modifications concerned potential discrimination:

We find that the Agency articulated a legitimate, nondiscriminatory reason for rescinding its tentative offer because Complainant’s action in modifying the official form without getting prior approval was deceitful because modifying the form after the management officials had already signed it made it appear as if the management officials had also agreed to those changes.

Id. at 5-6.

Although participation in EEO-related speech in the workplace may constitute a protected activity, it does not confer absolute immunity from disciplinary or other consequences resulting from any associated misconduct. [email protected]

Related training

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

How Late is Too Late to Clarify Vague Performance Standards?

,

By Deborah J. Hopkins, February 10, 2026

headshot of DebLast summer OPM issued a memorandum [PDF], Performance Management for Federal Employees (OPM Memo), as part of its goal to deliver a “high-performance, high-accountability culture in the Federal workforce.” We covered the guidance in detail in a training a few weeks later, and one of the ensuing discussions has focused on the requirement that:

[P]erformance plans should be written as clearly and specifically as possible to “provide a firm benchmark towards which employees must aim their performance” and “permit the accurate evaluation of job performance on the basis of objective criteria.” Performance elements and standards should be measurable, understandable, verifiable, and achievable [MUVA].

OPM Memo at 4.

This concept isn’t new; clarifying vague standards is something that multiple administrations have focused on in years past. Despite that, vague performance standards still exist, and they continue to present problems for supervisors when employees perform unacceptably.

While OPM is requiring supervisors to clean up their employees’ performance plans in advance of the appraisal period, what happens if a supervisor hasn’t done that, and is now facing a performance problem with an employee? Must the supervisor rewrite or clarify the standards and wait until the new appraisal year begins before taking action?

Nope.

Consider a recent MSPB decision, Khan v. DOJ, DC-0432-21-0205-I-4 (Jan. 29, 2026)(NP). Here’s what happened:

  • In 2019 the appellant, a GS-14 IT Specialist, was given a performance plan with 5 rating levels.
  • The plan contained six critical elements, with the “successful” level of performance (Level 3) defined for each element.
  • On May 26, 2020, the agency informed the appellant that her performance was “unacceptable” (Level 1) in three critical elements.
  • The agency put the appellant on a PIP that lasted 79 calendar days.
  • During the PIP, the appellant’s supervisors met with her weekly to discuss her performance, and provided her with written notes from the meetings.
  • At the conclusion of the PIP the agency determined the appellant’s performance remained unacceptable on Critical Element 1, and issued her a level 1 performance rating as a result.
  • On November 6, the agency proposed removal for unacceptable performance and on December 30 affirmed the removal.
  • The appellant filed an MSPB appeal, and the administrative judge (AJ) sided with the agency, finding it met the requirements of a performance-based removal under Chapter 43.

Id. at 2-4.

On Petition for Review the appellant alleged, among other things, that the agency’s removal action was improper because her performance standards were impermissibly vague, the agency failed to communicate “valid performance standards” before the initiation of the PIP, and that she was not performing unacceptably before the start of the PIP. Id. at 5.

On Vague Standards

The general rule is that performance standards are not valid if they do not set forth the minimum level of performance that an employee must achieve to avoid unacceptable performance. Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 21 (2013).

In Khan the Board held, because the appellant’s Level 2 performance standard was not clearly explained in the performance plan, the standard was indeed “impermissibly vague.” Khan at 8. But, the agency clarified its expectations in the “job elements” section of the PIP by informing the appellant of the specific tasks she would be required to complete during the PIP, and the agency’s clear guidance during the PIP also helped cure any lack of specificity in the performance plan. Id.

On Pre-PIP Unacceptable Performance

When an appellant challenges a performance-based removal or demotion, the agency is required to produce substantial evidence of pre-PIP unacceptable performance. Santos v. NASA, 990 F.3d 1381 (Fed. Cir. 2021).

In Khan, the Board was not convinced by the appellant’s argument that the agency did not have evidence of pre-PIP unacceptable performance: “to the extent that [the performance plan] was vague, the agency clarified its expectations of the appellant through day-to-day communication regarding her work,” including “regular instruction concerning her work assignments and deadlines throughout the appraisal period.” Khan at 10.

A line on the next page stands out to me: “Accordingly, we find that the agency communicated its expectations concerning ‘minimally satisfactory’ performance in [Critical Element] 1 with sufficient specificity before its initiation of the PIP.” Id. at 11.

Pre-Santos, clarification of a vague standard at the time of the PIP implementation, and during the PIP, was sufficient. Johnson v. Interior, 87 M.S.P.R. 359 (2000). Post-Santos, vague standards must be clarified at some point before the agency is permitted to PIP an employee.

What’s the Board’s rationale for this change? I think it’s this:

  • If an agency waits until the PIP implementation to clarify vague standards,
  • And the standards were not sufficiently clear pre-PIP,
  • Then the action will not hold up under Santos, which
  • Requires documentation (substantial evidence) of recent/pre-PIP unacceptable performance, and
  • You can’t prove unacceptable performance on an impermissibly vague standard.

This is a significant change mentioned without fanfare in an NP case. If any readers have a differing or concurring interpretation, I welcome your thoughts. [email protected]

Related training

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

When a Supervisor (Improperly) Requires Full Access to an Employee’s Medical Documentation Before Approving an Accommodation

,

By Deborah J. Hopkins, January 20, 2026

Medical documentation is one of the most commonly misunderstood aspects of employee leave requests, and is complicated further when the employee is a qualified individual with a disability, and his leave request doubles as a request for reasonable accommodation.

A recent MSPB case considered this scenario, McClelland v. VA, AT-0752-23-0162-I-1 (Dec. 10, 2025)(NP). Here’s what happened.

  • Jan 6, 2022: The appellant, who had contracted COVID, began using sick leave.
  • 5: The appellant had exhausted his sick leave balance, but he was still suffering from complications, including COVID-related pneumonia.
  • 6: The appellant requested the use of extended annual leave due to his continued inability to return to work. The supervisor acknowledged the request and said the appellant would be required to submit medical documentation directly to him, as a condition of approval.
  • The appellant, not wanting to give his medical information directly to his supervisor, provided medical documentation from his pulmonologist to the agency’s Medical Director.
  • 14 and 17: The Medical Director relayed the broad “substance of the medical note to the appellant’s supervisor and informed the supervisor that the appellant was medically unable to work,” and said that the appellant would be re-assessed by his pulmonologist on Mar. 1. Id. at 3.
  • 16: The appellant informed his supervisor that he had provided documentation to the Medical Director.
  • 18: The appellant again requested annual leave to cover his absences. His supervisor responded that he had still not received the appellant’s medical documentation and denied the request.
  • 2: Still too sick to work, the appellant submitted for FMLA leave.
  • 31: The appellant submitted a retirement request because he needed benefits and “was in an unpaid status, his request to use annual leave had not been approved, and his FMLA request had not been approved.” Id.
  • 1: The appellant filed an EEO complaint alleging the agency created a “hostile work environment based on race, age, disability, and reprisal for EEO activity by, among other things, denying him reasonable accommodation, denying him use of his annual leave, and constructively removing him from his position.” Id.
  • The agency informed the appellant that his case was a mixed case and that he could submit his complaint to the agency’s EEO office for a Final Agency Decision (FAD), that he could appeal the FAD to the MSPB, or file an MSPB appeal if he had not received the FAD within 120 days of his complaint being filed.
  • 15, 2023: The appellant, who had not received a FAD, filed an MSPB appeal alleging a constructive discharge, claiming the agency created “an intolerable work environment that had compelled him to retire,” and that he had been subjected to disability discrimination when the agency denied his leave request. Id. at 4.
  • 20: The MSPB administrative judge (AJ) dismissed the appeal for lack of jurisdiction, finding the appellant’s retirement was a voluntary action because the illness, and not the agency’s action, caused the retirement.

That brings us to the current case, where the Board considered the appellant’s petition for review. It disagreed with the AJ and determined that the appellant established his retirement was involuntary for two reasons:

  1. The appellant lacked a meaningful choice in his retirement because he was medically unable to work due to his COVID-related pneumonia, and
  2. The agency’s improper actions deprived the appellant of a meaningful choice: the agency refused to engage in the interactive process when it did not consider whether annual leave was a reasonable accommodation, even though the appellant had provided sufficient medical documentation.

If you’re thinking, “Wait, COVID isn’t a disability, so why was he entitled to an accommodation?” it would behoove you to check the government’s current guidance, which states long-term COVID and related conditions meet the ADAAA definition of disability.

A failure to engage in the interactive process is not always a fatal flaw, provided the agency still provides an effective accommodation, but in this case, it did not – nor did it provide evidence that granting the leave would be an undue hardship.

The Board ordered the agency to reinstate the appellant, retroactive to his retirement date, plus award him back pay, interest, and related costs. [email protected]

Related training:

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

The State of the Civil Service: 2026 Edition

,

By Deborah J. Hopkins, January 6, 2026

headshot of Deb

Happy New Year, FELTG Nation. To say 2025 was a year of extreme change would be the understatement of the century. While there’s no shortage of discussion topics related to the Federal oversight agencies, I’ll do my best to provide a summary and not write a novel.

Compared to this time last year, the makeup of the political appointees at the top of the independent oversight agencies is vastly different, with only a few individuals remaining. Plus, agency priorities have drastically shifted.

Here we go.

Merit Systems Protection Board (MSPB)

By early 2025, all but a few of the 3,793 PFRs in MSPB’s backlog from its 5+ year lack of quorum (2017-2022) had been adjudicated.

In a shocking move, President Trump fired Chair Cathy Harris on February 10, and Vice Chair Raymond Limon’s term expired on February 28, leaving the Board quorum-less again as of March 1, with only Acting Chair Henry Kerner remaining. During the October-November shutdown, the Senate confirmed nominee James Woodruff II as a Member, and once the shutdown ended, the Board became functional with its quorum restored.

So, what about that seat left vacant by Harris’s firing? She appealed her removal in Federal court, claiming it was unlawful because the Civil Service Reform Act says, “any member may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 1202(d). Indicators from oral arguments in early December in a similar removal – Rebecca Slaughter at the Federal Trade Commission – predict the Supreme Court will agree with the administration and find that removal restrictions in the statutes that structure multi-member independent agencies unconstitutionally restrict the President from running the executive branch. If this happens, it will fundamentally change the structure of over two dozen independent agencies in the government, which have traditionally had bipartisan membership with intentionally staggered terms.

In last year’s State of the Civil Service article, I wrote: “Harris’s term doesn’t expire until 2028 and Kerner’s in 2030, so we anticipate stability to remain in the Board over the coming months unless something unprecedented happens.”

I can admit when I’m wrong.

Equal Employment Opportunity Commission (EEOC)

Change was quick at the EEOC last year, with existing Commissioner Andrea Lucas named as Acting Chair and ultimately confirmed as Chair. Only one other Commissioner from this time last year, Kalpana Kotagal, remains, as then-Commissioners Charlotte Burrows and Jocelyn Samuels were fired by the President early in his term. Meanwhile, Brittany Bull Panuccio was recently sworn in as Commissioner, which leaves two vacancies but establishes a quorum.

EEOC’s focus in 2025 shifted dramatically, and its new priorities include:

  • Guidance on National Origin discrimination, with a focus on anti-American bias.
  • Dismissal of all claims asserting disparate impact discrimination.
  • A significant change in the Commission’s stance on LGBTQ+ workplace discrimination and employees’ biological sex, including an opposition to portions of the Commission’s 2024 enforcement guidance on workplace harassment and Pregnant Workers Fairness Act regulations.

There’s litigation on many of these changes, and what that means for these topics remains to be seen.

Federal Labor Relations Authority (FLRA)

FLRA leadership consists of three political appointees; Colleen Kiko is the Chair and Anne Wagner is a Member. Susan Tsui Grundmann, who had been the Chair under President Biden, was fired by the President a few weeks into his term, and she challenged her removal in Federal court. Similar to the MSPB and EEOC, under the statute FLRA Members can only be removed for cause. On December 18, the Senate confirmed Charles Arrington to the post previously held by Grundmann, with a term expiring in 2030.

And…FLRA still lacks a general counsel. The last time this position was officially filled with a non-acting GC was 2017. While we don’t have an exact number on pending unfair labor practice (ULP) filings (the best guess is a few hundred), they are all held in abeyance until a GC is confirmed.

Given the vast executive action limiting the rights and even existence of unions in the Federal government – some estimates say almost half a million bargaining unit employees have lost their union protections – and bipartisan bills introduced to undo some of these actions, it has been a tumultuous year for Federal Labor Relations. And with ongoing litigation, we don’t know how this will turn out.

U.S. Office of Special Counsel (OSC)

Right now, OSC is being run by Acting Special Counsel Jamieson Greer, who is also in the role of the Director of the Office of Government Ethics and U.S. Trade Representative. Previous Special Counsel Hampton Dellinger, who was confirmed in 2024 for a 5-year term, was promptly fired just a few days into the President’s term. He initially challenged his removal in court but ultimately withdrew his case.

OSC was very busy in the early days of 2025, initially advocating on behalf of thousands of probationary employees who were removed, but once Dellinger was removed, OSC dropped the case.

In 2025, OSC also updated its Hatch Act guidance, which included loosening restrictions on political party items in the workplace and an advisory opinion [PDF] allowing prosecution of former Federal employees for Hatch Act violations made while they were employed.

That does it for now. We’ll keep you posted as new events unfold in Washington, DC, and around the country. Happy New Year, FELTG readers! We hope it’s your best one yet.  [email protected]

Related training:

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.