Is Taking a Nap Every Two Hours a Reasonable Accommodation for Narcolepsy?

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By Deborah J. Hopkins, May 15, 2025

 

Key facts:

  • The complainant had two reasonable accommodations for his narcolepsy – periodic naps, and flexibility to travel to obtain medication refills.
  • The agency terminated the complainant after he requested – and the agency granted – a modification to his medication refill travel schedule.
  • The EEOC found the agency retaliated against the complainant because of his accommodation requests, and created a hostile work environment when it transferred him to a new position and then terminated his employment.

This case involves a contractor who had worked with the State Department for 30 years, and who for the past 10 years had worked in Iraq as a Systems Administrator. In October 2020 he claimed the agency discriminated against him on the bases of disability (Type I Narcolepsy, Colon Cancer) and in reprisal for prior protected EEO activity when:

  1. On July 20, 2020, he was terminated from his position as a contractor for the agency; and
  2. Since the fall of 2018, he was subjected to a hostile work environment characterized by, but not limited to, heightened scrutiny and disapproval of his reasonable accommodation.

Wes L. v. State, EEOC App. No. 2021005122, 2 (May 15, 2023).

The case primarily focuses on the reasonable accommodation requests related to the complainant’s narcolepsy, “which flares up when he misses his medication. If he misses his medication, he experiences hallucinations, nausea, double vision, and daytime sleepiness. … Because he experiences daytime drowsiness and sudden attacks of sleep, his narcolepsy reportedly impacts his sleep, ability to work, and his ability to eat.” Id.

Agency-approved accommodations for the complainant’s narcolepsy included a 15-minute nap every two hours while he was on duty, and the flexibility to return to the United States periodically to obtain medication that was not available to him in Iraq.

On a 2020 trip to the United States he requested to return to Iraq on a flight a few weeks later than originally scheduled, so that he could obtain enough medication to last him an additional three months in Iraq. The agency granted the request, but then terminated him just days later, claiming that the last-minute change of plans for his return flight left the agency unable to replace the complainant with another contractor, which caused a customer service hardship.

While the Commission found this was a legitimate, nondiscriminatory articulation of the agency’s reasoning, it also found the agency’s claim was pretextual and the facts did not support the agency’s assertion about the timing of the complainant’s request to change his flight. Therefore the agency “retaliated against Complainant in violation of the Rehabilitation Act when it asked that Complainant be removed from his post with the Agency following his request for reasonable accommodation.” Id. at 7.

The case also addressed the complainant’s claims of hostile work environment harassment and found that the complainant’s job transfer (motivated by his supervisor’s disapproval of his need for naps) and his termination amounted to tangible employment actions taken because of the reasonable accommodation requests. [email protected]

Related training:

When Calling Your Supervisor a “F*cking Motherf*cker” is NOT a Removable Offense

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By Deborah J. Hopkins, April 29, 2025

Key facts:

  • The appellant experienced a stress-induced heart attack at work.
  • He was removed for inappropriate conduct after yelling and cursing at his supervisor including multiple uses of the f-word, when his supervisor did not immediately sign a workers compensation form related to the heart attack.
  • The AJ mitigated the removal to a 30-day suspension, finding the deciding official did not appropriately consider  mitigating factors, and the Board agreed.

Over coffee the other morning, I finally caught up on my case reading: about 100 MSPB nonprecedential cases that have been issued in the last several weeks.

One that caught my attention was Rike v. Navy, PH-0752-23-0075-I-1 (Mar. 31, 2025)(NP), where the agency removed the appellant, GS-12 Supply Management Specialist, for inappropriate behavior. The appellant had “yelled and cursed at [his supervisor], called him a “f*cking liar” and a “[f]*cking [m]other [f]*cker,” and “demanded that [the supervisor] sign” a workers compensation document about the appellant’s recent workplace-related health episode – a heart attack caused by stress. Id. at 3. The appellant had been disciplined twice prior to this incident.

Under Board precedent, agencies can usually justify removal for a third offense of just about any misconduct based on multiple instances of prior discipline. And here, the appellant’s disciplinary record included a letter of reprimand for unauthorized absence, lack of candor, and failure to follow instructions, and a 14 -day suspension for failure to comply with timekeeping procedures. Id. at 7.

The administrative judge (AJ) mitigated the removal to a 30-day suspension and the Board agreed, finding the agency’s Douglas factors analysis was flawed because the deciding official (DO) did not give proper consideration to several mitigating factors.

The case points out, “In concurring with the proposing official’s analysis, the deciding official assigned more weight to the appellant’s prior unrelated discipline.” Id.

The Board continued:

Although the Board generally will not discount a prior disciplinary record because it is for an unrelated offense, if the nature of the prior misconduct is sufficiently different from the charges in the proposal at issue, the difference may significantly diminish the weight of that prior discipline in determining a proper penalty. See Skates v. Department of the Army, 69 M.S.P.R. 366, 369 (1996); Lewis v. Department of the Air Force, 51 M.S.P.R. 475, 484 (1991). As such, we are unconvinced that the appellant’s attendance-related discipline, which is sufficiently different from the charged inappropriate behavior, outweighs his 10 years of service, which was free from the discipline at issue here.

Id.

The Board also addressed other mitigating factors and found the DO did not give them appropriate consideration:

  • The appellant’s stress levels which caused his on-duty heart attack;
  • The appellant’s allegations of bullying and harassment from his immediate supervisor and other management officials, which included a pending EEO complaint against his supervisor;
  • The appellant’s satisfactory performance evaluations;
  • The agency’s identified comparator employees had engaged in multiple instances of disrespectful conduct while the appellant engaged in a single instance;
  • The appellant’s supervisor was also yelling and shouting during the altercation; and
  • Instances of shouting and using inappropriate language were common in the shipyard.

Despite the Board’s statement that they acknowledged “the seriousness of the charge against the appellant and do not minimize its gravity,” id. at 9, they agreed with the AJ that a 30-day suspension was the maximum reasonable penalty. All the more reason for the PO to do a full Douglas analysis, and the DO to give a full explanation of all the Douglas factors – aggravating and mitigating – at hearing. [email protected]

Related training:

Lynching Jokes and Slave Roles: Racial Harassment on the Job

By Deborah J. Hopkins, April 22, 2025

Key facts:

  • Forcing an African American employee to role play as a slave during a Juneteenth celebration was unwelcome conduct based on race and color.
  • Comments about lynching and other stereotypes also contributed to a hostile work environment.
  • When a supervisor or manager engages in repeated harassment of a subordinate, the agency is usually liable.

Sometimes I read a case and it involves such blatant misconduct that I can’t believe an agency would litigate rather than settle. Such a case is Anne C. v. VA, EEOC App. No. 2022003036  (Jan. 31, 2023).

The complainant, a GS-11 Social Worker in the agency’s Homeless Program in Kansas City, Missouri, alleged she was subjected to a hostile work environment based on race (African American/Mixed), color (Dark), religion (Christian), and disability (Multiple Sclerosis), when:

  1. Since 2013, the complainant was assigned an unfair number of cases that included cases based solely on race or religion;
  2. In 2018, the complainant’s first-line supervisor referred to the complainant as “girl”;
  3. In August 2020, the complainant was not selected for the position of a GS-11 Social Worker;
  4. On various dates, multiple coworkers subjected the complainant to racial slurs, disparaging remarks, and a comment about a past “lynching”;
  5. In June 2020, the complainant was forced to participate in an event where racial slurs and stereotypes were made, and she was required to roleplay a “slave”;
  6. On August 6, 2020, the complainant was notified by her second-line supervisor that the Program Manager made disparaging remarks about the complainant’s physical appearance and lisp; and
  7. On various dates, the complainant was denied training opportunities.

Id. at 2.

The agency accepted claims 1, 3, and 7 as independent claims, and also accepted the complainant’s discriminatory harassment claim for investigation. The Final Agency Decision (FAD) determined there was no discrimination or harassment, so the complainant appealed to the EEOC.

The Commission found the agency “proffered legitimate, nondiscriminatory reasons for claims 1, 3, and 7,” id. at 3, but also contradicted a number of the agency’s findings on the race and color harassment claims. In fact, the Commission held, the “Complainant’s workplace was permeated with discriminatory ridicule, insult and microaggressions by multiple Agency employees that, in cumulative effect, were sufficiently severe or pervasive to create a hostile work environment for Complainant that altered the conditions of her employment.” Id. at 7.

According to the Commission, the following incidents were the cause of a hostile work environment based on race and color:

  • A supervisor repeatedly referred to the complainant as “girl,”
  • The complainant was subjected to comments about lynching and ropes,
  • The complainant was subjected to racially insensitive epithets at a work meeting,
  • The complainant was forced to act as a slave in a Juneteenth program, and
  • The complainant was subjected to comments based on racial stereotypes related to the Juneteenth celebration.

The Commission found the agency liable and ordered corrective action. Additionally, in a footnote the EEOC specifically noted improper actions by the agency’s EEO Manager in communications with the investigator. Id. at 6. We can’t stress this enough – the integrity of the EEO process from start to finish is paramount. [email protected]

Related training:

Off-duty Conduct: Violation of a Protective Order, Conduct Unbecoming, and Nexus

By Deborah J. Hopkins, March 26, 2025

Quick facts:

  • Nexus is a requirement in misconduct cases appealed to the MSPB.
  • Off-duty conduct may have a nexus to the workplace, especially when a law enforcement officer engages in potentially criminal offenses.
  • An agency’s trust and confidence in the appellant’s ability to carry out the mission is a crucial consideration in nexus.

Nexus is a topic we’ve written about in this space before. A recent Federal Circuit case involving off-duty conduct by a Department of Education Criminal Investigator highlighted that the agency’s trust and confidence in the employee, as well as negative publicity about the employee’s conduct, remain two of the key ways in which nexus can be proven.

The agency removed the appellant after police got involved following a physical altercation (the case referred to “physical grappling”) at home with his wife and his 16-year-old stepdaughter. Gonzalez v. Dep’t of Education, No.2023-2001 (Fed. Cir. Mar. 14, 2025)(NP). Criminal charges were filed but because the Los Angeles Sheriff’s Department (LASD) had trouble securing witness interviews, the prosecution dropped the case.

The agency’s Quality and Integrity Group (QIC) conducted an administrative investigation into the appellant’s conduct and found that:

… [The appellant] had assaulted his stepdaughter, drove away from the scene under the influence of alcohol leaving minor children unattended, violated the court-imposed protective order by regularly communicating with his wife, and interfered with LASD’s and QIG’s investigations. The Report opined that Mr. Gonzalez’s transgressions do not comport with the standards for character set by the Council of the Inspectors General (“CIG”), which require investigators to possess and maintain the highest standards of conduct and ethics. The Report particularly noted that Mr. Gonzalez’s failure to comply with the court-imposed protective order was a failure to comply with legal requirements, which is also a requirement of the CIG standards.

Id. at 7.

As a result, the appellant was removed based on three charges:

  1. Conduct Unbecoming a Federal Law Enforcement Officer, with five specifications;
  2. Lack of Candor, with three specifications; and
  3. Failure to follow instructions, with one specification.

Id. at 7-8. (I encourage you to read the case for the specific details, of which there are many.)

One of the primary issues in the appeal process was nexus: whether the agency showed by preponderant evidence that the appellant’s conduct impacted the efficiency of the service. The court relied on the deciding official’s unambiguous statement in her penalty analysis:

There is a nexus between the charged misconduct and your position as a Federal law enforcement officer. . . . You are expected to conduct yourself while on-duty and offduty in a manner that does not bring disrepute to yourself or to the agency. . . . You hold a position of public trust; the public expects that you will be trustworthy and act with integrity at all times. At the very least, the public expects that a person sworn to enforce the laws of the United States will also follow the law. . . . Your unbecoming conduct . . . violate[s] one or more of the expectations of Federal law enforcement officers described above. . . . Your failure to comply with a local judge’s protective order for its entire duration violates the expectation that a person sworn to enforce the laws will also follow the law at all times. Your behavior calls into question your ability and willingness to follow lawful orders and legal requirements related to your assigned investigations. . . . “I do not believe that management in OIG can confidently assign casework to you knowing that you engaged in unbecoming conduct, including violating a protective order.”

Id. at 23-24.

The court upheld the MSPB’s decision to remove, relying on the agency’s excellent explanation of nexus and its implication in a number of Douglas factors. [email protected]

Related training:

And Now a Word With … EEOC AJ Michael Rhoades

March 18, 2025

I enjoy commuting to work during an ice storm. I really need to spend more time on social media. If only there were more streaming services to which I could subscribe. I miss when car phones were 80 pounds.

These are some phrases you’re not likely to hear – ever. Oh, and here’s another one: Mixed cases are so easy to navigate.

We caught up with EEOC Administrative Judge Michael Rhoades – of the Chicago district – about this critical topic.

FELTG: Why do so many people struggle with mixed cases?

MR: Mixed cases can be very difficult to handle for a variety of reasons. As a threshold matter, as noted by the United States Supreme Court, the statutory framework surrounding mixed case processing is not the clearest. During oral argument in Perry v. Merit Systems Protection Board Justice Alito commented, “nobody who is not a lawyer, and no ordinary lawyer could read these statutes and figure out what they are supposed to do” and joked whoever drafted the statutory framework for these processes was, “somebody who takes pleasure out of pulling the wings off flies.” Also complicating the matter is that agency employees working in EEO offices and legal advisors assisting in the accept/dismiss process may not have been exposed to these issues. Some agencies have the additional muddying factor of certain categories of employees having MSPB appeal rights while others do not. Past changes in how the EEOC and MSPB handle mixed case processing, such as the processing of “inextricably intertwined” matters, can also create further uncertainty with an already confusing issue.

FELTG: What’s the most important thing for EEO staff to know about mixed cases when they first receive a complaint?

MR: It is very important for EEO staff to have clear understanding of what type of issues are appealable to the MSPB and which employees have MSPB appeal rights. For the Board to have jurisdiction over an appeal it must have jurisdiction over both the action and the employee filing the appeal. While the EEOC has jurisdiction over all sorts of actions, learning the specific, limited types of “adverse actions” the MSPB has jurisdiction over will catch most mixed case complaints. If EEO staff keep an eye out for these at the time of acceptance and properly identify these issues, much of the confusion and delay can be avoided. EEO staff should also remember that where a matter is proposed and later implemented, the proposal “merges” with the decision and should not remain as a separate unmixed issue. EEO staff should also have knowledge of constructive adverse actions and how these matters should be handled.

FELTG: What is the most common mistake and/or misconception in terms of choice of venue?

MR: The most common misconception is that employees get to choose whether to have their appeal heard before the MSPB or the EEOC. When I question whether the EEOC has jurisdiction over something because it appears to be a mixed case issue, it is not uncommon for employees (and even attorneys) to state they, “elected to pursue the matter before the EEOC.” If the Board has jurisdiction over the matter and the employee has Board appeal rights, with limited exceptions, the matter cannot proceed to an EEOC administrative hearing. An employee may elect to file a mixed case appeal directly with the MSPB or a mixed case complaint with the EEO office. If they file a mixed case complaint, however, this election only determines whether the matter is investigated pursuant to 29 CFR 1614 prior to receiving a final agency decision with appeal rights to the MSPB.

FELTG: Where do mistakes in the process most often happen?

MR: The most common mistake is not identifying mixed case issues at the time of acceptance which results in these issues being treated as unmixed issues. Instead, EEO offices need to clearly identify these at the time of acceptance because complainants have different rights for mixed case issues. The acceptance letter needs to accurately reflect and articulate their options. Another common slipup occurs when a complainant initiates EEO contact for precursor unmixed issues that they believe are discriminatory and are later subject to an adverse action which may be appealed to the MSPB. The amendment may be made, but oftentimes no one realizes that these new issues are subject to mixed complaint processing. The acceptance/amendment letter needs to clearly identify the mixed issues that will receive a Final Agency Decision (FAD) appealable to the MSPB and which issues can be heard before the EEOC.

A similar frequent error happens when mixed issues are identified at the time of acceptance, however, when the investigation is complete the EEO office mistakenly informs the employee that they have a right to an EEOC hearing on all issues. Instead, a FAD should be issued on mixed issues and only unmixed issues are heard by the EEOC.

FELTG: What are some of the impacts of improper mixed case processing? 

MR: Mistakes can lead to extremely lengthy delays and can also deprive employees of correct due process rights. The MSPB considers the procedural and substantive merits of a limited number of disciplinary actions, while the EEOC considers a broader range of issues but asks only if the action is discriminatory or retaliatory. As a result, it is imperative that these issues are identified early and properly routed to ensure employees are afforded the proper scope of review. [email protected]

Related training:

Federal Employment Law Terms of Art: The Right Definitions

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By Deborah J. Hopkins, March 4, 2025

A lot has been happening in the Federal workplace, especially related to employees being placed on admin leave, thousands of probationary terminations, and the beginnings of reductions in force. So FELTG has put together a mini-glossary of terms that we think you’ll find useful.

Administrative/admin leave: leave status imposed by an agency, where employees are sent home but retain full pay and benefits while not being assigned any work. Limited to 10 days per year for investigative purposes; other purposes (not defined in the regulation) do not have a cap. See 5 USC 6329a(b); 5 CFR §§ 630.1402-1404.

Investigative leave: a leave status imposed by an agency when an employee is the subject of an investigation and retaining the employee in the workplace during an investigation would be disruptive. Limited to 90 days per year. See 5 CFR §§ 630.1502-1504.

Proposed removal: a letter given to a Federal employee that informs her the agency is proposing to remove her from service (which means, fire her). The letter gives specific reasons about what the employee did wrong (called a disciplinary charge), and why removal is the appropriate outcome (penalty justification). The letter gives the employee a period of time (usually 7-14 days) to respond to the deciding official and tell her side of the story, and it informs her she has the option be represented by someone she chooses (such as an attorney, union official, or personal friend). In most cases, an employee does not have the right to appeal or challenge a proposed removal because it is a preliminary action and not an official action. An employee can, however, appeal a removal decision.

Proposing official: the agency management official who proposes a disciplinary action, including removal. Often this is the employee’s immediate supervisor, but it can be any agency management official.

Deciding official: the agency management official who decides on the outcome of a proposed removal after considering the employee’s response. Often this is the employee’s second or third level supervisor, but it can be any agency management official.

Probationary termination: the separation (firing) of a person who works for a Federal agency who has not yet earned “employee” status (usually someone employed by the government for one year or less; two years for excepted service). See 5 USC 7511 or other relevant statute. Probationers can be terminated quickly for even minor reasons, but the reason must be given to the employee in writing before the termination is effective.

Deferred resignation: an agreement between an employee and an agency that the employee will resign on X date in the future in exchange for something from the agency, such as continued pay through X date. A deferred resignation must be in writing and signed. It is effective and binding on the date it is signed by the second party.

RIF: a reduction in force, the term the government uses to describe a layoff. A RIF is used when an agency abolishes a job position. OPM says RIFs are usually the result of a “reorganization, including lack of work, shortage of funds, insufficient personnel ceiling, or the exercise of certain reemployment or restoration rights.” There are complex regulations that govern a RIF that determine which employees are removed and which employees stay on the payroll. An agency must give an employee notice of its intent to remove him as the result of a RIF. See 5 CFR § 351.

Layoff: a broad term for removing a person from employment for non-disciplinary reasons, such as budget or change in workplace needs. Not typically a term used in reference to cutting the size of the government workforce, but often used outside of government.

Related training:

When Overzealous Management Becomes (Potential) Harassment

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By Deborah Hopkins, February 18, 2025

Quick facts:

  • An employee claimed sex-based harassment after her supervisor’s threatening behaviors.
  • The agency dismissed the complaint for failure to state a claim.
  • EEOC remanded for investigation because the facts as alleged could have sufficiently impacted the complainant’s terms, privileges, or conditions of employment.

If I had a dollar for every time an employee claimed “harassment” by a supervisor who was actually just doing their job, I would be long-retired and living life in a hammock on an island somewhere. Many, if not most, allegations of harassment against a supervisor end up being non-meritorious – meaning, not discrimination and not related to the person’s protected EEO categories.

But there’s always an exception. Consider Herta R. v. USPS, EEOC App. No. 2024003913 (Nov. 6, 2024). The complainant alleged her supervisor was harassing her based on sex, and made her feel physically threatened when he:

  • Approached her aggressively;
  • Got close enough to her face that she could smell his breath, then yelled at her and threatened her;
  • Followed her around work for approximately 30 minutes; and
  • “Cornered” her at work, which prevented her from going into the women’s restroom or exiting the building to get away from him.

The agency dismissed the complaint for failure to state a claim (29 C.F.R. § 1614.107(a)(1)), and the complainant appealed to the EEOC. The questions before the Commission included:

  • Whether the complainant was an “aggrieved employee” who suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy (Diaz v. USAF, EEOC Req. No. 05931049 (Apr. 21, 1994)), and
  • Whether the alleged harassment would be sufficiently severe or pervasive to alter the conditions of the complainant’s employment (Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)).

The EEOC found the agency improperly dismissed the complaint because the complainant “sufficiently alleged that she was subjected to verbal or physical threats of violence because of her sex.” Herta R. at 4. As a result, the EEOC remanded the case back to the agency to process the complaint.

This doesn’t mean the complainant will ultimately prevail, but it means the agency is required to investigate the allegations to determine the facts.

Nearly a year passed between the time the complainant made her first harassment allegation and when the EEOC remanded the case, so the agency’s investigation is most likely happening as you read this. There is a lot to consider when investigating issues that occurred long in the past, so check out FELTG’s upcoming training calendar to see some of the topics we’ll be covering in 2025. [email protected]

Related trainings;

How to Get to the Federal Circuit if MSPB Loses its Quorum

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By Deborah J. Hopkins, February 14, 2025

You may have heard that earlier this week the White House fired Cathy Harris, who until recently was Chair of the U.S. Merit Systems Protection Board (MSPB or Board). Harris was serving the remainder of a seven-year term in a Senate-confirmed position set to expire in 2028, and has since filed a lawsuit claiming her removal was illegal because there was no cause for her removal.

Among other things, the MSPB adjudicates covered Federal employee appeals of their removals from service. Administrative Judges (AJs) hold hearings and issue decisions on the removals, and the judges’ decisions can then be appealed through a Petition for Review (PFR) to the three-member Board.

In the event Harris does not end up reinstated, the three-member Board at MSPB could lose its quorum at the end of the month; Member Raymond Limon’s term is set to expire Feb. 28. Limon has the ability to choose to hold over for up to a year or until a successor is named and confirmed, but if he departs only Chairman Henry Kerner would remain. At least two Senate-confirmed members are required to issue decisions on PFRs, so the Board could cease to be functional at the PFR level in just two weeks. (We are really hoping it won’t.)

And at a critical time where an influx of litigation is expected over removals, RIFs, and more, this little agency is crucial to the functioning of the executive branch. From 2017 to 2022, the Board was without a quorum because the Senate refused to vote on President Trump’s nominees from his first term, and as a result around 3,800 PFRs stacked up. This meant there were thousands former employees waiting years to find out if they would get their jobs back. Harris shared earlier this week that 99 percent of the inherited inventory had been adjudicated since the Board regained its quorum in 2022.

So what does this all mean for Federal employees, or those former employees who were recently removed?

If the Board loses its quorum, administrative judges will still be able to issue decisions of employee appeals, but PFRs of those decisions would stack up until a quorum is restored.

Unless.

There’s a lesser-known alternative to filing a Board PFR that you should know about: filing a PFR directly with the Court of Appeals for the Federal Circuit. If an AJ issues a decision and 35 days goes by without the former employee (called an appellant) filing PFR at the Board, the AJ’s initial decision becomes the final Board decision. This gives the parties the right to file a PFR of the AJ’s decision directly with the Federal Circuit. 28 USC § 1295(a)(9); 5 USC 7703(b)(1)(A); 5 CFR § 1201.113.

Usually, appellants file PFRs to the MSPB because it’s free, and filing in the Federal Circuit is not – it costs around $600. Also, the decisions on PFRs from the Board can still be appealed to the Federal Circuit – so appellants who go the route of taking the PFR directly to the Federal Circuit are losing an entire step of review.

The Federal Circuit’s scope of review in an appeal from the Board is limited by statute; it must affirm the Board’s decision unless the court finds the decision to be:

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 USC § 7703(c); see Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010).

Under the substantial evidence standard, this court reverses the Board’s decision only “if it is not supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Haebe v. DOJ, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (quoting Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).

In a typical year, the Federal Circuit upholds the MSPB’s decisions about 92 percent of the time. We expect we may see more Federal Circuit action in the coming months if the Board loses its quorum. Let’s hope that doesn’t have to happen. [email protected]

Related training:

The information presented 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.

Federal Employment Law’s 15 Minutes of Fame

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By Deborah J. Hopkins, February 10, 2025

Federal employment law is having a moment.

With the flurry of Federal workplace-related Executive Orders and memos issued over the past three weeks, media outlets are scrambling to keep up, and “experts” are jockeying for press and an opportunity to discuss the laws that govern the executive branch.

At FELTG, we’ve been teaching the law since 2001 – we have instructors who have been practicing it further back than that – and we want to caution you that before you rely on something you read in the media, be sure you vet the source.

To be clear, a lot of employment law experts are relaying accurate information during this crucial time. But just as many are not. Below are just a few of the myths we’ve encountered, with clarifications beneath.

MYTH: The ban on DEIA eliminates agency reasonable accommodation offices.

Clarification: Well, it shouldn’t and it better not, because the law requires agencies to provide the reasonable accommodation process to any employee or applicant who needs it. There has been some confusion, we think, because the “A” in DEIA stands for accessibility. OPM issued a memo on February 5 clarifying that agency RA programs and EEO complaint processes are not impacted by EOs 14148, 14151 and 14173.

The memo says, “[A]gencies should retain personnel, offices and procedures required by statute or regulation to counsel employees allegedly subjected to discrimination, receive discrimination complaints, collect demographic data, and process accommodation requests.”

MYTH: Administrative leave is always limited to 10 days per year.

Clarification: The Administrative Leave Act does indeed limit the use of administrative leave to 10 days per year. 5 U.S.C. 6329a. But OPM regulations, which were finalized in December 2024, clarified the 10-day limit applies only to agency investigations:

§ 630.1404 Calendar year limitation.

(a)    General. Under 5 U.S.C. 6329a(b), during any calendar year, an agency may place an employee on administrative leave for no more than 10 workdays. In this context, the term “place” refers to a management-initiated action to put an employee in administrative leave status, with or without the employee’s consent, for the purpose of conducting an investigation … The 10-workday annual limit does not apply to administrative leave for other purposes. After an employee has been placed on administrative leave in connection with such an investigation for 10 workdays, the agency may place the employee on investigative leave under subpart O of this part, if necessary (see 5 U.S.C. 6329b(b)(3)(A) and § 630.1504(a)(1))… (bold added)

Because the regulations are so new we don’t have any case law interpreting what “other purposes” might be covered. Historically, though, admin leave has been used for everything from voting to sending someone home after an accident in the workplace. We’ll likely soon learn whether the current large-scale administrative leave orders across some government agencies will meet the “other purposes” identified in the regs.

MYTH: A probationary employee can only be separated from service for performance or conduct reasons.

Clarification: As we’ve both written about and taught, probationary employees can be terminated quite easily (they must be given the reason in writing), and they have very limited appeal rights. 5 U.S.C. 7511(a)(1)(A)(i). Probationers are only afforded the right to appeal a termination to the Merit Systems Protection Board if their removal was based on:

  • Partisan political activity,
  • Marital status, or
  • Pre-appointment reasons.

See 5 C.F.R. 315.804-806; Starkey v. HUD, 2024 MSPB 6 (2024). Probationers also have the right to file a complaint with the Equal Employment Opportunity Commission if they believe they were terminated because of civil rights discrimination, and with the U.S. Office of Special Counsel if they believe they were terminated in violation of a prohibited personnel practice. So working backwards from the rights and corresponding case law, it appears any legitimate business-based reason for a probationary separation would afford a probationer no appeal rights. This is currently being tested as large swatch of probationary employees are being terminated from agencies, and unions are pursuing litigation over the terminations.

Also, I clarified this last week on a LinkedIn discussion: A supervisory probationary period is different from an initial appointment probationary period. If a supervisor happens to be in her initial appointment one-year period and also in her supervisory probationary period, then yes, she can be separated without due process (subject to those exceptions noted above). But the supervisory probationary period is different in that if an agency decides the supervisor is not a good fit in the role during the first year as a supervisor, the agency can return the supervisor to her previous, non-supervisory position or its equivalent, 5 C.F.R. 315.907(a). This does not give the agency a right to remove the supervisor, who has already successfully completed her probationary period, from service without due process.

Plenty more myths are circulating, with new ones almost every day, to stick with FELTG and we’ll help clarify during this very busy time. And if you have questions, please Ask FELTG. [email protected]

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This article was updated with new information on wide-scale probationer terminations on February 14, 2025.

The information presented 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.

And Now a Word With … EEOC GC Karla Gilbride

By Dan Gephart, January 7, 2025

Equal Employment Opportunity Commission General Counsel Karla Gilbride doesn’t work directly in the Federal sector, but when it comes to reasonable accommodation, the areas of concern are strikingly similar.

“Like all employers, the Federal government is run by people who have many demands on their time,” Gilbride said. “As a result, ensuring that disabled employees are included on terms of equality and are properly accommodated can sometimes fall through the cracks.”

“Federal managers and supervisors, as well as human resource professionals, must ensure Federal agencies have clear and effective policies and processes in place to allow employees to make requests for reasonable accommodation and that those requests are considered in a timely and thoughtful manner. Our workers are truly our greatest asset. We can’t do the work of serving the public without first serving our employees by providing accessible and equitable workplaces for everyone.”

As 2024 wound down, we caught up with Gilbride to discuss reasonable accommodation trends, the Pregnant Workers Fairness Act, requests for medical documentation, and more.

DG: It’s been almost a year since you’ve been sworn in. What stands out most about your first year as General Counsel?

KG: I have been incredibly impressed with the commitment and professionalism I see from the career staff at the EEOC. People here are truly dedicated to the mission of the Commission to root out employment discrimination and have devoted themselves to doing that every day. I am grateful to have this opportunity to lead the agency’s litigation program and continue its legacy of preventing and combatting discrimination in our society.

DG: We are in the early days of the Pregnant Workers Fairness Act (PWFA) and there is still some confusion. Tell us how it differs from the ADA.

KG: In FY2024, EEOC filed five lawsuits under the new law, one that we have already settled, and resolved two charges through public conciliations. We are also working hard to get the message out about what this law does.

Importantly, it fills a gap in protections from other Federal anti-discrimination laws, including the ADA and the Pregnancy Discrimination Act (PDA) under Title VII. Under the ADA, a pregnant person must prove their condition rises to the level of a disability to qualify for a reasonable accommodation. The PDA is limited in that it prohibits pregnant workers from being treated worse than other workers similar in their ability or inability to work, which means that in order to bring a claim under that law, a pregnant worker would need to be able to point to a similarly simulated non-pregnant worker who was treated better.

The PWFA, on the other hand, requires certain protections for all pregnant workers, regardless of whether they would qualify as having a disability and regardless of how non-pregnant workers are treated. As an example, the law requires employers to provide reasonable accommodations for the known limitations of the pregnancy, childbirth, or related medical conditions, which includes lactation, of a qualified employee, in addition to prohibiting employers from taking adverse action against workers based on pregnancy, childbirth or related medical conditions.

In addition, the law prohibits an employer from requiring an employee to accept an accommodation other than a reasonable one that has been arrived at through the interactive process, and it also prohibits an employer from requiring an employee to take leave, whether paid or not, if another reasonable accommodation is available. The regulations under the PWFA also establish that some of the most commonsense accommodations, like providing additional restroom breaks, time to eat or drink, the ability to have water readily available, and to stand or sit as needed, will almost always be considered reasonable and should not require medical documentation.

DG: Some of the early cases seem to show employers failing to make some of those simple temporary accommodations. What else are you seeing so far in the early enforcement of PWFA?

KG: Requiring medical documentation, particularly the volume and detail that may be required under the ADA, is one of the most common violations we’re seeing. Many employers are not yet familiar with the PWFA and assume that when someone requests a pregnancy-related accommodation, it is the same as requesting one for a disability, but it is not.

The PWFA does not require an employer to ask for medical documentation, and the employer may only do so when it is reasonable under the circumstances (such as when it’s necessary to determine if an employee qualifies for an accommodation and what kind of accommodation). Another very common mistake, which we often see under the ADA as well, is requiring the employee to go on leave while the employer figures out whether the employee qualifies for an accommodation and if so, identifying the available accommodations. But as explained above, forcing an employee to take leave is expressly prohibited by the PWFA if another reasonable accommodation is available.

One other unique feature of the PWFA, which will be new to employers, is that a reasonable accommodation may be the temporary suspension of an essential job function. While this is not permissible under the ADA, it is explicitly allowed for under the PWFA, as long as the person can perform the essential function again in the near future and their inability to perform it temporarily can be accommodated without undue hardship to the employer.

DG: Technology is evolving quickly, but that doesn’t guarantee accessibility. What should Federal agencies consider when upgrading technology to ensure it is barrier-free?

KG: When considering technology upgrades, it’s critical for Federal agencies to seek out and consider feedback from all employees, including those with disabilities, to ensure that it is truly accessible. This is not only a good practice to ensure that everyone with a stake in the outcome is consulted, but it is also required by Section 508 of the Rehabilitation Act, which mandates equal access and usability for people with disabilities whenever a Federal agency procures or develops electronic and information technology.

Too often, employers do not proactively and thoroughly test whether a new software program they’re considering or other changes they’re making to the workplace will create unintended obstacles for employees with disabilities, but it’s far more expensive to try to correct accessibility problems on the back end after a new product has been purchased or a new system has been rolled out. As with many other issues, an ounce of prevention is worth a pound of cure, not to mention the message of inclusion it sends when the perspectives of disabled employees are affirmatively sought out and valued. Employers will serve their organizations and employees better by thinking about accessibility from the beginning and including it as a factor in RFPs and other procurement processes. There are also many organizations, like state vocational rehab agencies and the Job Accommodation Network (JAN), that employers, including Federal agencies, can consult for free about how to make new technology accessible to all workers.

DG: When it comes to ADA, what do employers/supervisors most often fail to understand?

KG: We see some of the same issues that I mentioned earlier with regard to the PWFA, particularly in the areas of requiring unnecessary medical documentation and immediately placing people on leave when they request another accommodation.

Only medical documentation which is absolutely necessary for an employer to determine if an employee is entitled to a reasonable accommodation, and what kind of accommodation, is permissible. What is necessary may be quite limited, depending on the disability.

In most cases, this will be only a brief note from a medical professional stating the employee’s disability, which may include identifying a major life activity that is substantially limited, if that is not already known or obvious; the functional limitations of the employee relevant to the requirements of their job; and possibly a specific requested accommodation.

We also see employers placing disabled folks on leave for long periods of time while they consider reasonable accommodation options but then extending indefinitely those leaves, which are usually unpaid. In many of those instances, a reasonable accommodation was readily apparent and available. One more common mistake we see employers make is requiring a doctor’s note clearing the employee to return “without restrictions” from a medical leave of absence even if the person can still do the job with some restrictions through a reasonable accommodation. Those sorts of one-size-fits-all, inflexible policies violate both the text and the spirit of the ADA, which is all about recognizing that not everyone will do the same job exactly the same way and that variations in the human condition in terms of ability should be embraced and accommodated, not dismissed as disqualifying, because they mean that more of us will be able to contribute our talents and perspectives in the workplace.

DG: If there was one thing you could tell Federal supervisors that you think would make the workplace more inclusive, what is it? 

KG: Making the workplace more inclusive is incumbent upon all employers, whether they are Federal or private. The same advice would apply to all employers, and that is to see people for who they are as individuals and what they can each bring to the table.

Every employee is unique and brings their own perspective, experience, and skills. Take advantage of those differences by welcoming and valuing them and figure out how they can be used to the benefit of the work you do. Spend the time to find out what each employee is good at and capitalize on that as much as possible, and if you recognize a barrier that may keep some qualified people from entering your workplace or prevent those who are already there from reaching their full potential, think creatively about what you can do to remove that barrier. [email protected]

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