Three Costly Lessons on Reasonable Accommodation

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By Deborah J. Hopkins, March 6, 2023

There are always two sides to a reasonable accommodation (RA) case: the agency’s side and the complainant’s side. While a lot of our training programs at FELTG focus on avoiding agency liability, there’s another aspect to this that’s important to mention, and that’s doing the right thing for the employee who requests accommodation. We see too many instances where an agency handles an RA request improperly, and it exacerbates the employee’s medical condition, causing further harm.

The goal should always be to process RA requests according to the law. One way to ensure that happens is to look at cases to see what agencies did correctly, and also cases where they could have handled requests better. Today I want to highlight three important lessons from fairly recent RA cases.

1. If an accommodation is working, don’t change it. Every now and then we see a scenario where an employee is on a long-term RA, and a new supervisor comes in and revokes the RA, thus causing problems for the complainant and the agency. Once such case involved a technical editor who suffered from irritable bowel syndrome. She was on 100 percent telework with a flexible schedule for several years. She had been performing her duties, preparing manuscripts and various administrative oversight functions, at an acceptable level throughout this time.

A new supervisor took over the department and cancelled all existing telework agreements, including the complainant’s. The complainant notified the supervisor she needed telework to accommodate her disability and she requested the RA be granted back to her. The agency refused and, among other things, claimed the complainant’s job was not telework eligible, despite the fact that she’d been performing the work from home for several years. As a result of the accommodation denial, the complainant stopped coming to work. The EEOC found that the agency failed to provide an RA. It ordered the agency to offer the complainant a retroactive reinstatement, with appropriate back pay and benefits, and to investigate the complainant’s claim for damages. Sandra A. v. Navy, EEOC Appeal No. 2021002132 (Sept. 16, 2021), request for recon. denied, EEOC Request No. 202200276 (Mar. 7, 2022).

2. Don’t skip the interactive process. In this case, the complainant was a food inspector who developed asthma. The chemical sprays used to wash animal carcasses in his work area exacerbated his condition, so he provided a medical note to inform his agency of the issue. Rather than consider the medical note as an RA request, the agency considered the note as evidence the complainant could not work in his designated area and sent him home. The EEOC found this particular conclusion to be rational at the time.

From home, the complainant again requested an RA – specifically, the use of a certain type of respirator his physician recommended that would filter out the workplace chemicals that irritated his respiratory system. The agency denied this request, claiming “there is no evidence that demonstrates significant inhalation exposure to the employees at the establishment.” The complainant continued to make requests. After a few weeks, the agency informed him that he could use a different type of respirator than the one his doctor had ordered. However, this respirator did not filter out the chemicals that caused the complainant respiratory distress, so he again requested to use the respirator the physician recommended. He was denied because, according to the agency, it “would be an undue burden because it is a safety hazard while performing his animal slaughter duties as well as concerns with complying with OSHA’s regulatory requirements.”

EEOC noted that by requesting use of the respirator, the complainant requested the interactive process: “This informal, interactive process should be a problem-solving approach that includes: an analysis of the job to determine its essential functions; consultations with the complainant; an assessment of the effectiveness of potential accommodations; and consideration of the complainant’s preferences. 29 C.F.R. pt.1630, app. § 1630.9.”

The EEOC held the agency failed to engage in the interactive process because it did not “participate in this necessary exchange of information, which resulted in the improper denial of a reasonable accommodation.” The EEOC ordered the agency to consider the complainant’s request for compensatory damages. Tyson A. v. USDA, EEOC Appeal No. 2020000972 (Aug. 16, 2021).

3. After receiving sufficient medical documentation, don’t ask for more. The complainant in this case was injured at work. As a result, she required surgery and reasonable accommodations. She provided sufficient medical documentation to substantiate her FMLA and RA requests, but the supervisor still contacted the complainant’s medical provider without the complainant’s permission to make further inquiries about the complainant’s medical restrictions.

The supervisor was unable to explain why she needed additional medical documentation, so the EEOC found the agency committed a per se violation of the Rehabilitation Act by conducting an unlawful disability-related inquiry. EEOC remanded the case for a back pay award and a compensatory damages assessment. Eleni M. v. Army, EEOC Appeal N. 2020001903 (Sept. 7, 2021), request for recon. denied, EEOC Request No. 2021005193 (Feb. 22, 2022).

We’ll be addressing these issues and more during EEOC Law Week next week, on June 14 in Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency, and as part of the updated Reasonable Accommodation in the Federal Workplace in 2023 webinar series, beginning July 20. [email protected]

Ask FELTG: What’s the Best Way to Calculate Non-pecuniary Compensatory Damages in an EEO Case?

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February 28, 2023

Thanks for the question. The best way to determine appropriate compensatory damages in cases where agencies are found liable for discrimination, harassment, reprisal, or a failure to accommodate is to look at the harm the employee endured. It’s difficult to put a dollar value on non-tangible things like anxiety, fear, loss of sleep, and the like, so researching cases where the facts are similar will help you determine what amount of damages the Commission would consider appropriate.

According to instructor Bob Woods, “EEOC has provided that an award should reflect the nature and severity of the harm to the complainant and the duration or expected duration of the harm. They have specifically stated that they will attempt to make awards that are consistent with awards in similar cases.”

In addition, we’ve done training on the topic and a recording of the recent webinar Damages and Remedies in Federal Sector EEO Cases is available in the FELTG store. Or, join us during EEOC Law Week March 13-17 for a live discussion on this topic and more.

Have a question? Ask FELTG.

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.

And Now a Word With … Michael Wolf of FLRA’s CADRO Program

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By Dan Gephart, February 21, 2023

Soon after the Administrative Dispute Resolution Action was amended in 1996, the Federal Labor Relations Authority established the Collaboration and Alternative Dispute Resolution (CADRO) program. CADRO provides mediation for negotiability petitions and arbitration exceptions pending before the Authority and offers training on building healthy workplace resolutions and resolving conflict.

The program developed a reputation (one well-backed by statistics) as a successful resource for resolving complex and sensitive cases. The goal, Director Michael Wolf said is “to improve mission performance, quality of work life, and labor-management engagement.”

This time two years ago, however, there was no CADRO. It was a victim of the previous administration’s strongly held positions on labor relations.

Then-FLRA Chairman Ernie DuBester reestablished the program in late February 2021 and brought Wolf back to the fold. That was followed several weeks later by the return of Merritt Weinstein to his former CADRO position as senior dispute resolution specialist. As Wolf says, he and Weinstein “are CADRO!”

Since CADRO was reestablished, parties requested or agreed to requests for assistance in 51 negotiability cases concerning 554 disputed proposals and disapproved provisions, according to Wolf. The parties resolved all but two of the 470 language disputes in cases that closed. They are currently working on 84 language disputes in nine other negotiability cases.

We caught up with a very busy Wolf to talk about the return of CADRO and its services and get his insight on how best to resolve workplace conflict and avoid grievances. We cover the former in today’s first of a two-part article. You can find Part II here.

DG: What has been the biggest shift or change you’ve seen in cases that come your way compared to the previous iteration of CADRO?

MW: The biggest change has been the volume of ULP [Unfair Labor Practice] cases in which we are conducting settlement conferences. To help expedite clearing a backlog of more than 450 ULP charges that the FLRA Office of General Counsel deemed meritorious and queued for issuing a complaint, the FLRA Chief Judge has ordered the parties in virtually every case to participate in a settlement conference before the case can be heard by an ALJ. [Editor’s note: Due to the absence of a GC at the Authority during the previous administration, the FLRA built up a backlog of ULP cases.]

Parties appear to have done a great job settling backlogged cases before they entered the Settlement Judge Program. By this summer, CADRO staff expect to conduct settlement conferences in the last of almost 300 backlogged ULP complaints that have entered the Settlement Judge Program, plus dozens more pre-complaint ULP cases.

DG: How long did it take to get the program up-and-running again at full speed?

MW: Merritt and I found ourselves running at top speed almost immediately. During our first 12 weeks back in CADRO, we were actively involved in 15 negotiability cases containing 147 language disputes. Parties successfully resolved 145 of those language disputes during our mediation process, as other unions and agencies submitted additional requests for CADRO assistance in negotiability cases.

We started sprinting at more than full speed when ULP complaints started to issue in mid-2021. Now that we are mediating arbitration exceptions again, we are not letting our foot off the gas. We try to resolve negotiability cases in eight to ten weeks. We try to resolve ULP complaints in about twelve weeks. Our settlement rate for negotiability cases since CADRO was restored is just over 90 percent. Our settlement rate for ULPs is about 85 percent.

DG: For those out there who have never used CADRO, why should they choose it?

MW: Workplace conflict is inevitable. If we manage conflict poorly, it is more likely to be costly and destructive. At CADRO, we utilize specialized knowledge, skills, and decades of experience helping representatives of management and unions prevent conflict from becoming destructive and, when it cannot be prevented, to manage and resolve it constructively. This can help improve mission performance, quality of work life, and labor-management engagement. Those are the three legs of a sustainable, labor-management relationship that is value-added rather than a cost of doing business.

DG: Describe CADRO’s approach to mediation?

MW: Our style of mediation is “situational” rather than facilitative or evaluative or some other label. Parties define success, which might not include settling the litigation pending before FLRA. We rely on problem-solving skills, listening skills, negotiation skills, organizational familiarity, and substantive familiarity to offer parties the best opportunity to satisfy their legitimate interests. We offer parties an opportunity to go beyond the legal questions that gave rise to their case, if both want to, and explore ways to resolve the underlying problems that triggered litigation in the first place. We strive to earn parties’ respect by being neutral, ethical, and patient yet persistent. We use an interest-based process that is collaborative, confidential, low-risk, relatively informal, and normally requires only one ground rule: treat each other with mutual respect.

Another important reason people choose to use CADRO is results. We have a track record of helping parties achieve what they identify as most important, and almost always far quicker than waiting for a litigated outcome.

[Editor’s note: Visit here to learn more about CADRO and its services. For more on settling disputes, join FELTG on April 12 for Drafting Enforceable and Legally Sufficient Settlement Agreements.] [email protected]

To Avoid the Kraken, Warn Without Threatening

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By William Wiley, February 6, 2023

If you have attended any FELTG training relative to handling misbehaving employees, you have no doubt heard our instructors caution that, from a legal standpoint, the less you do to a problem employee, the better. That’s because Federal employees have significant rights when it comes to challenging management actions, and some challenges can be much more serious than others. Therefore, the more you do, the more you will have to be ready to devote resources to defend, and the greater the odds that you might make a mistake.

Consider an employee’s right to file a complaint of whistleblower reprisal with the US Office of Special Counsel. If a supervisor takes – or even just threatens to take – a personnel action that negatively affects an employee, and that employee can convince OSC that the personnel action probably was motivated by a desire to punish the employee for whistleblowing (or filing a grievance or engaging in some other “protected activity”), then OSC will Release the Kraken! 5 USC 2302. If you have ever been on the receiving end of an OSC investigation and the subsequent threat of a stay or discipline of a management official, then you know that the OSC Kraken can be a very unpleasant Kraken indeed. [Editor’s note: Yes, the Kraken is a bit of hyperbole, but meant only to highlight the thoroughness and effectiveness of an OSC investigation.]

And don’t forget, once you’ve taken a personnel action against an employee who believes that whistleblower reprisal was the actual motivation, even if OSC decides not to prosecute, the employee can file an MSPB appeal: motions, depositions, discovery, hearings … all sorts of things that keep you from doing the real work of your agency. You just don’t want to go here if you can avoid it.

This doesn’t mean that an agency should refrain from dealing with a problem employee out of fear of an OSC investigation. Oh, no, that would be un-American. What it does mean is that a smart agency should figure out how to accomplish the objective with the employee that you want accomplished without unnecessarily triggering a possible complaint.

Here’s an example of how that works:

At FELTG, we teach that, as a general rule, supervisors should not issue letters of warning or counseling. That’s because neither is a required action and they are of little, if any, value relative to progressive discipline or eventual removal. If you’re going to put time and effort into drafting and issuing the employee some document to correct misbehavior, then issue a Reprimand, the traditional first step in progressive discipline.

However, there may arise a situation in which the supervisor wants to do something to get the employee’s attention, or simply to emphasize or clarify the workplace rule that the employee has been violating, without disciplining the employee. Someone in your office comes up with the idea of issuing a Letter of Warning and you get assigned the job of drafting it. What do you do?

Let’s say that Pat has been cooking fish for lunch in the break room microwave, making the office smell just awful. The supervisor wants to issue a Letter of Warning. Consider these two alternative drafts:

 

Letter of Warning (Option A)

To: Pat

From: The Boss

In the future, you are not to cook fish in the break room microwave.

 

Letter of Warning (Option B)

To: Pat

From: The Boss

In the future, you are not to cook fish in the break room microwave, or you may be subjected to discipline.

 

Option A puts the employee on notice of the office rule, an essential element of holding an employee legally accountable for future misconduct. Option B does the same thing, AND ALSO OPENS THE DOOR TO AN OSC INVESTIGATION! MSPB has held that a letter of warning or counseling that does not contain a threat of discipline is NOT a personnel action for the purpose of OSC jurisdiction, but one that does threaten possible future discipline is. Campo v. Army, 93 MSPR 1 (2002); Agee-Long v. GSA, MSPB No. SF-0752-17-0518-I-1 (Jan. 20, 2023) (NP).

Federal employment law is difficult enough when just the minimum is done. Just like packing that bug-out bag for when you have to hike into the wilderness to escape some disaster, you don’t want to carry any more weight than necessary. Employ that same principle when deciding how to do this work. Almost always, the less done, the better. [email protected]

Last Chance Agreement Violation With a Side of Fries

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By Deborah J. Hopkins, January 30, 2023

A last chance agreement (LCA) is an alternative disciplinary option for an agency when an employee has engaged in misconduct that warrants a removal, but the agency gives the employee one final opportunity to keep her job. Typically, the LCA is offered after the employee’s response to the proposal and before the decision is due. An LCA generally includes the employee’s promise to follow all the agency’s rules and maintain successful performance for two years. In exchange, the agency agrees to purge the proposed removal from the file upon successful completion of the LCA. If the employee violates the agreement at any time within the two-year period, the agency can remove the employee as quickly as the day of the violation without requiring another proposal. (This is all written into the terms which we’ll discuss in more detail during MSPB Law Week March 27-31).

An LCA can be a marvelous tool for agencies when an employee engages in removable misconduct, but the agency wishes to give the employee one more chance to show she deserves to keep her job. There are multiple reasons why an agency would employ an LCA:

  • The employee engaged in misconduct the agency cannot ignore, but the employee is truly remorseful
  • The employee engaged in substance misuse and agrees to get treatment if the agency gives her another chance
  • The employee has a unique skillset and would be difficult to replace
  • The job exists in a geographic area where employees are difficult to recruit and a vacant position would be highly problematic for the agency
  • The supervisor has reason to believe the employee has learned her lesson

A recent MSPB case, Bollin v. VA, DA-3443-16-0106-I-2 (Jan. 19, 2023)(NP), involved a VA police officer whose removal was proposed based on two charges:

1.    Failure to follow a direct order, and

2.    Failure to follow supervisory instruction.

The deciding official agreed the evidence and penalty assessment supported removal. Prior to the effective date of the removal, the agency and appellant entered into an LCA. Under the terms of the LCA, “the agency agreed to hold the removal action in abeyance for a 2-year period … and purge the removal and agreement from the appellant’s agency file upon completion of the 2-year period … In exchange, the appellant served a 14-day suspension and agreed that, should he ‘engage[] in any substantiated misconduct’ or violate any other term of the agreement within the 2-year period, then the agency would reinstate the removal action and immediately remove him from his position.” Id. at 2.

Several months later, the appellant violated the LCA when he “was 20 minutes late in departing for firearms training and stopped at a McDonald’s drive-thru to purchase food on the way to the training, which constituted an unreasonable delay in carrying out instructions and an unauthorized use of a Government vehicle.” Id. at 3. The agency removed him for these two acts of misconduct. While seemingly minor, the conduct triggered the violation of the LCA.

As these cases go, the appellant filed an appeal to MSPB. The Board found no jurisdiction because the appellant violated the agreement, which had included a provision that he waived his MSPB appeal rights over the initial action. So in the end, Officer Bollin stayed fired.

Other types of misconduct that the Board has agreed violate an LCA include:

  • Referring to a co-worker as a “kiss-ass” in a group email (Reveles v. DHS, DA-0752-08-0306-I-1 (May 30, 2008)(ID)
  • Testing positive for alcohol and marijuana while on duty (Complainant v. USPS, EEOC No. 0120130190 (2014))
  • Possession of marijuana (Bruhn v. USDA, 2016 MSB 42)

Not every LCA violation involves French fries, but this is probably a lesson with details none of us will soon forget. [email protected]

And Now A Word With … EEOC Chief AJ Regina Stephens

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By Dan Gephart, January 3, 2022

Regina Stephens was named EEOC’s Chief Administrative Judge in October 2022. It’s a full circle return. Her path to becoming Chief AJ began in Washington, DC, where she worked as an appellate attorney in the Office of Review and Appeals, now the Office of Federal Operations.

Looking back, Stephens (pictured, at right), can’t imagine a better way to start her Federal sector career.

“It was certainly helpful to begin from an appellate perspective – examining the work of federal agency investigations, the EEOC administrative judge and the federal agency’s final action – my introduction to this work presented various party perspectives from the start,” Stephens said. “I am grateful for such an introduction to employment law. In many ways, it shaped my career as an administrative judge.”

After several years in DC, Stephens moved to North Carolina where she became an administrative judge.

“The federal sector community was, essentially, my coworkers from other agencies,” she said. “The administrative process was created for all of us (federal government employees) to enjoy a model workplace free of discrimination. These roles, as well as other private sector roles, with their challenges and successes, have provided me with the tools to be an effective leader.”

We caught up with Stephens late last year.

DG: You mentioned model workplaces. Where do agencies need to improve most in order to reach that goal?

RS: Retaliation continues to plague both our private sector companies as well as the federal government. It remains prevalent because of lack of understanding and tolerance. This form of discrimination is an area where agencies should provide and mandate training. In addition, we must hold wrongdoers accountable for their actions and allow room for positive change in our work communities.

DG: What will your top priority be as Chief Administrative Judge?

RS: It is my forever top priority to continue to improve every aspect of this administrative process for our federal sector community. Careful attention has been made to continuous legal education for our staff as well as our stakeholders. Many of our administrative judges participate in outreach activities in this regard. In addition, we continue to adjust our case management systems in order to provide effective and efficient service to our federal employees and applicants.

DG: What needs to be done to ensure consistency in procedure and decision-making among the agency’s administrative judges? 

RS: For several years, the EEOC has worked diligently to require consistency with respect to procedure and processing with training and quality reviews. These efforts are apparent with our current staff and in our resolution of thousands of cases every year.

DG: What are the most common mistakes you see agencies or complainants make when presenting a case? 

RS: It is essential for a party to understand their own case. Oftentimes, an individual believes that simply recounting what happened to them is sufficient to prevail. This is a frequent misstep. Individuals should be clear in their communications on what happened, but they must prove that event is discriminatory. To satisfy this proof, one must understand what is required. Resources are available on EEOC’s website. If the public has more questions or looking for more information, they can write us.

DG: Is it an effective tool to require offenders receive EEO training as part of a decision?

RS:  EEO training can be an effective tool if properly executed. Agencies should carefully review decisions and understand the behavior they are trying to correct. Secondly, staff should be trained by experienced and knowledgeable personnel.

[Editor’s note: FELTG provides EEO-ordered training, as well as numerous off-the-shelf training courses on Federal sector EEO topics. Email [email protected] or check out the FELTG website for more information.] [email protected]

Year in Review: Top FELTG Newsletter Stories of 2022

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By Dan Gephart, December 13, 2022

Happy Holidays FELTG Nation! Welcome to the fourth annual year-end News Flash, where we unveil the most popular FELTG newsletter stories (based on the number of reads and forwards) of the previous 12 months.

The 2021 Year in Review was strewn with stories on vaccine mandates and other pandemic challenges. Even with my subpar math skills, I can figure out how many stories on those topics made it into this year’s top story list.

Zero.

That’s right. Pandemic-related issues haven’t disappeared. And our COVID-19 stories and guidance continued to receive a lot of eyeballs in recent months. However, pandemic-related stories were not among the top two most read and forwarded articles in any specific month this year. What were people reading then?

Considering this is the first time we’ve compiled the top story roundup with a full MSPB in place, it’s not surprising that a majority of the most-read stories involved new MSPB decisions. Since the MPSB returned to deciding cases, FELTG has been at the forefront of reading and interpreting them for Federal practitioners.

We continue to hold up our end of this bargain. Join FELTG President Deborah Hopkins on Feb. 14 for latest session of Back On Board: Keeping Up With the New MSPB, our quarterly two-hour review of the newest and most critical Board decisions.

Beyond new MSPB guidance, people read articles on harassment, union meetings, and much more. Let’s take a look back month by month.

January

If you’ve ever been in a class taught by FELTG Instructor Ann Boehm, you’ve heard her refer to the Office of Folklore, or as it’s better known – OOF! OK, so it’s not a real office. Ann uses OOF to explain how bad information gets circulated as the truth. It happens a lot more than you’d think (or hope).

Here’s a specific example. We hear from many professionals who use the following equation to distinguish between performance and conduct cases: Can’t = performance and won’t = conduct. Ann tackles this federal employment law version of fake news in our most-read article of January. As Ann conveyed so clearly: Instead of can’t versus won’t, rely on the performance plan’s critical elements when deciding between a performance or misconduct action.

Speaking of performance, if your agency’s performance year coincides with the calendar year, you are likely working on performance narratives now. If that’s the case, FELTG Senior Instructor Barbara Haga has a clear message for you: It’s Time to Do Better. That message clearly resonated with readers.

February

According to a very unscientific poll (that means it’s my guess), February generated more shrieks of “WTF” in FELTG Nation than any other month.

People read about the ambulance company that failed to respond properly to a harassment allegation. Quick recap: An EMT was fired fewer than 24 hours after she received an unwelcome picture of a sexual nature from a coworker. Although it’s an older case that doesn’t involve a Federal agency, the story offers a lesson to Feds about the importance of investigations.

Meanwhile, Barbara’s tale of a staffing specialist hired AFTER recently facing a suspension AND being the subject of a sexual harassment investigation at his previous agency was the second most-read article.

March

So, you wonder: How did that staffing specialist get hired? It turns out, he lied on his SF-85Ps. You think that’s ridiculous? In Barbara’s March follow-up column, we find out why he lied. Meanwhile, Ann Boehm provided some Good News for agencies when she answered the question: Does the union get to attend every meeting between me and an individual bargaining unit employee? Ann answers: “It depends, probably not as often as bargaining unit employees think.” She laid out specific guidance on when the union does have that right, per Weingarten meetings. No wonder it was most read story of the month.

April

It’s difficult to capture in writing the excitement at FELTG Headquarters in April. It wasn’t the
beginning of the baseball season or the arrival of spring. We had MSPB cases once again!

In this most-read article of April, Deb shared three lessons learned from the new MSPB’s decisions. Ann’s Good News: The Union Doesn’t Get to Attend Every Meeting, this time with the focus on formal meetings, was a close second.

May
If there is any theme running through this year’s top stories so far, it’s that 1) Barbara Haga writes a lot of stories about poor-performing or misbehaving officials who should really know better; and 2) you all love to read about them. You met the lying staff specialist in February and March and, in May, Barbara introduced you to a Chief Operating Officer who was removed for conduct unbecoming – the most-read story of May. [Hornsby v. FHFA is an important decision. Read Deb’s takeaways.]

On the flip side, we don’t hear much about supervisors being harassed by employees. Have you ever thought about filing an EEO complaint against an employee? Can you? In May’s second most popular story, Deb confirms that supervisors can file an EEO complaint. But it’s much quicker and more effective to handle the harassment as a conduct issue. In the particular case discussed in Deb’s story, a supervisor was harassed because of his sexual orientation.

June

Longtime residents of FELTG Nation are well aware of the trio of 2010 Board decisions on comparator employees that we dubbed the “Terrible Trilogy.” We preached again and again that these misguided decisions put too large of a burden on agencies to be consistent with agency-wide discipline. Twelve years later, the MSPB came around to the FELTG way with a decision that offered clear, specific, and reasoned guidance on who counts as a comparator employee in an adverse action under Douglas factor 6. Deb’s story on this important new case was our most-read article in June.

Not all cases can be groundbreaking, precedential decisions. But even relatively unremarkable, non-precedential MSPB decisions can teach or reaffirm best practices everyone should know, as FELTG Past President Bill Wiley discussed.

July

When it comes to whistleblowing cases, the MSPB has tended to interpret “covered personnel action” quite broadly. Not so anymore. Ann Boehm shares the Good News about a recent Board decision, reminding us that the employee has the burden to show a “significant change” in duties, responsibilities, or working conditions. It was the most-read story of July.

Meanwhile, Deb addressed the workplace struggle (for some) with pronouns – an important piece of the gender identity equation. Refusal to use an employee’s preferred pronoun, or name, has been problematic for agencies in recent years, not just from a liability perspective, but because of the impact of the harassment on the complainants.

August

Longtime Board observer Bill Wiley has been very impressed with the work of the new MSPB. Granted, like most practitioners, Bill was glad to see anything coming out of MSPB HQ after a five-year drought of decisions. Still, the occasionally cantankerous FELTG founder called the Board’s legal analyses “well-based and consistent with common sense, upholding much and modifying where necessary.”

But …

(You knew a but was coming.)

Bill found issue with one MSPB decision involving an employee initially removed for conduct unbecoming. The case gets much more complicated than that, and it involves a discussion of who gets to determine whether an employee is probationary. The most-read story of August definitely deserves another look.

As most of you know, FELTG not only offers open enrollment training, but we can come to your agency (onsite or virtually) to provide training for your team.

[I’m interrupting myself here to let you know: If you’re interested in this kind of training, contact me at [email protected].]

We received a lot of inquiries for agency-specific training last year on the topic of harassment. But we received an interesting request along with many of those inquiries: Can you please also cover what is not harassment, especially when it comes to supervisory actions?

We’re talking setting deadlines. Creating a telework schedule. Enforcing a dress code. Providing performance feedback. As long as these supervisory actions are taken reasonably, they are not harassment. Can a supervisor cross the line from effectively supervising employees to creating a hostile work environment? Yes, it’s possible. Deb provides the clear distinction for what is and isn’t harassment.

September

Sleeping on the job. Conducting personal business while at work. Work remotely even though you’re required the employee to return to the physical workplace. Let me spell it out for you: A-W-O-L. Yes, it is possible to be Absent Without Leave even if you’re at work. And that includes working at a remote site.

Many of you worried when employees told you that they did not want to return to the physical workplace. It was a big enough concern to make this our top-read story of September.

Also in September, Deb shared an ugly case of harassment based on disability. A high-level supervisor mimicked an employee with a visible disability in a meeting with all of his coworkers. Here’s the takeaway for all agencies: Take prompt, corrective, and effective action against harassment.

October

During a training session, an attendee told Ann that her agency attorneys suggest “we always advise employees of their Weingarten right.” Ann was aghast. So, she wrote a Good News column explaining to readers the statutory language makes it crystal clear that the agency representative does not have any such obligation.

FELTG has been around for more than 20 years now. Since the beginning, we’ve told agency reps and supervisors that if you’re charging misconduct that begins with an F word (no, not F%@! for F%@! sake – we’re talking falsification, fraud, false ____, etc.), you better make sure you have evidence that the employee intentionally provided false information. There are numerous case law examples out there, and Deb shared a new case example from the MSPB in her popular October article.

November

Agencies have a right to expect a higher standard of conduct from officials who occupy positions of trust and responsibility. You know, supervisors, agency leaders, law enforcement officers, Senior Executive Service members. They should all know better, right? Well, you can add another category to that list — HR professionals.

In our top story of November, Deb wrote about an MSPB precedential decision involving a GS-9 supervisory specialist, who engaged in conduct, such as:

  • Calling subordinates “sexy” and “beautiful.”
  • Commenting on what a subordinate was wearing, including “you look nice,” and you “should wear dresses more often because [she] has nice legs.”
  • Leering.
  • Staring at a subordinate’s rear end.
  • Continuing to make comments even after the subordinates told him he had crossed a line.

An accident occurs at work, and the employee seeks workers’ compensation. But you (and others) think the employee was high or drunk when the accident occurred. An easy call, right – order a drug test, then decline the workers’ comp? Not so fast, guest columnist Frank Ferreri warns in our second most-read story of the month. Frank’s article is filled with case examples that provide a lot of insight.

December

When an agency loses a case, it’s more likely to be because of due process errors – and not the evidence. No wonder readers flocked to Deb’s story this month that offered due process lessons from three recent MSPB decisions.

FELTG Senior Instructor Barbara Haga has taught a lot of training sessions on the topic of reference checks, with a focus on making sure those doing the hiring have all the information they need from the applicants and previous employers. So, you can probably guess Barbara’s opinion on OPM’s newly released guidelines allowing agencies to use clean record agreements again. As Barbara said, you can use clean record agreements. But should you?

I’m not much of a prognosticator, but I’m sure MSPB decisions will make up a nice chunk of 2023’s Year in Review. But there will also be other issues that we can’t foresee. Regardless of the issue, we can guarantee that FELTG will be there to help you steer through any employment law challenges with the most up-to-date and engaging guidance – whether via web stories or in training classrooms.

Happy holidays and best wishes for a great 2023. [email protected]

So, Now Putin Can Claim Whistleblower Reprisal and Get an MSPB Hearing?

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By Deborah J. Hopkins, November 28, 2022

The MSPB’s most recent precedential decision deals with a Federal contractor (Abernathy) who made a protected disclosure in 2012 when he alerted the agency’s Inspector General that agency officials had misappropriated funds. A few weeks later, Abernathy applied and was not selected for a career position within the agency, so he contacted the U.S. Office of Special Counsel, and after exhausting that potential remedy, filed an Individual Right of Action appeal at the MSPB, claiming his nonselection was in reprisal for his whistleblowing activity under 5 USC 2302(b)(8).

As you might imagine, the agency argued there was no MSPB jurisdiction because Abernathy wasn’t an employee or applicant at the time he made the disclosure; the Administrative Judge (AJ) agreed and dismissed the appeal for lack of jurisdiction.

On Petition for Review the Board, saw it differently: “[The] appellant’s disclosures are not excluded from whistleblower protection simply because he was not a Federal employee or an applicant when he made a protected disclosure,” relying on Greenup v. USDA, 106 M.S.P.R. 202, ¶¶ 8-9 (2007), which said the statute does “not specify that the disclosure must have been made when the individual seeking protection was either an employee or an applicant for employment.” This principle was again iterated in Weed v. SSA, 113 M.S.P.R. 221, ¶¶ 8-12 (2010). Despite three nonprecedential decisions from the Federal Circuit which conflict with this reasoning, the Board chose to follow its own precedent and disregard the Federal Circuit, as its NP decisions are not binding on the Board.

In addition, the Board held, “This holding is not limited to Federal contractors, but applies to any individual who makes a whistleblowing disclosure at any time before becoming a Federal employee or applicant for employment.” Abernathy v. Army, 2022 MSPB 37 (Nov. 15, 2022). (bold added)

I was discussing this case with FELTG Founding Father Bill Wiley and he made an astute observation. “Abernathy has the potential to open up a big new world of whistleblower reprisal. A smart person (e.g., Vladimir Putin) could go public with a reasonable belief that some Federal manager has violated a law, then apply for a Federal job for which he ultimately is not selected, and THEN take advantage of the discovery procedures of his MSPB appeal to dispose all sorts of cool management officials.”

While we at FELTG aren’t sure exactly how far these protections might reach, and we hope it wouldn’t extend to someone like Putin, we can only wait to see this challenged in future litigation – perhaps the Federal Circuit will have something precedential to say one day. In the meantime, join us December 5-9, for MSPB Law Week where we’ll have a more in-depth discussion on this case plus all the new Board cases that matter most. [email protected]

Lessons Reinforced: DOs Can Be Heavily Involved Early in Discipline Situations

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By William Wiley, November 7, 2022

As the new Merit Systems Protection Board (MSPB) members plow through the 3,000-plus pending PFRs, we keep an eye out for any new principles of law being developed by the issuance of precedential decisions. However, it is just as valuable to watch for the affirmation of existing Federal employment law principles in new opinions, regardless of whether new law is being created. We all need to know whether any current Board members have a different take on existing precedence or plans to change how we do things.

[Editor’s note: See Bill’s recent article on other principles affirmed in recent MSPB decisions.]

A recent Board decision reminds us that a Deciding Official (DO) can be involved significantly in a disciplinary case before the Proposing Official (PO) issues the proposal notice. In Dieter v. DVA, 2022 MSPB 32 (Sept. 14, 2022), the new Board had to address a claim by the appellant that the agency violated his Constitutional due process rights because, among other things, “the deciding official was biased against him and considered ex parte information in deciding to impose the removal,” Dieter, ¶7. In evaluating this argument, the Board relied on precedence that broadly reinforced that a DO can be significantly involved in the initiation of a disciplinary action.

This is an important issue. At FELTG, we frequently hear from agency DOs who have been told that they must remain isolated from any proposed disciplinary action for fear of violating the employee’s due process rights. This is often frustrating for the higher-level manager who is concerned about workplace misconduct or poor performance yet is supposed to remain above the fray until the lower-level supervisor issues a proposal notice. We all need to appreciate that such isolation of the DO is not required by Board law and is usually bad for workplace management.

In finding no due process violation relative to this issue in Dieter, the Board referenced solid existing precedence that tells us that a DO can be very active in a discipline case without violating due process, e.g.,

  • “A deciding official’s awareness of background information concerning the appellant, her concurrence in the desirability to take an adverse action, or her predisposition to impose a severe penalty does not disqualify her from serving as a deciding official on due process grounds.” Lange v. DoJ, 119 MSPR 625 (2013).
  • “A deciding official’s mere knowledge of an employee’s background does not rise to the level of a due process violation unless ‘that knowledge is a basis for the deciding official’s determination on either the merits of the underlying charge or the penalty to be imposed.’” , 675 F.3d 1349 (Fed. Cir. 2012).

The key to avoiding a due process violation is for the heavily involved DO to be able to testify truthfully something like this:

“Yes, I was deeply involved in this incidence of misconduct. Yes, I have known the appellant for many years and previously witnessed several similar dishonest acts. Yes, I spoke to the employee’s supervisor and told him that he should consider proposing that the employee be fired. And yes, I told the supervisor that I considered that Douglas Factor 1 in the Douglas Factor Worksheet should be specific as to the extent of the harm caused by the misconduct. However, when I made my decision I considered only the evidence file, the employee’s oral and written responses, and the Douglas Factors as assessed by the proposing official.”

The Dieter opinion and order reminds us: If the DO can truthfully deny considering anything outside of these sources, there will be no due process violation.

For this case law reaffirmation, we can say, “Thank you, new Board members.” This principle validates the reality of a typical workplace. Higher level managers are involved in serious personnel situations in the organization, and such involvement is OK. No need to isolate DOs from an incident so long as they know to make their final decision only on facts told to the employee in the proposal materials. We hope all readers of our newsletter understand this concept and work to implement it in real time in their respective roles in discipline and performance-based actions.

In fact, being the aggressive little devils we are at FELTG, we encourage you to go one step further. When drafting a proposed removal letter for misconduct, why not have the PO and the DO sit down together with staff support from legal or human resources, and jointly develop a Douglas Factor Worksheet to be attached to the proposal notice? That way, any predispositions and concerns can be fleshed out early by both management officials simultaneously, and the employee properly notified of those concerns in the proposal notice so he can have a fair chance to respond to them? That should make it easier for the DO to consider the employee’s focused defenses and preclude a need for the DO to bring into the decision-making process any facts or issues not in the proposal.

New decisions that reinforce old principles are good. New ways of doing things built on those old principles that make this business more efficient are even better. Come to our training at FELTG, specifically the upcoming MSPB Law Week December 5-9, and learn how to do this work as well as it can be done. [email protected]

How Do You Feel About This 2-1 MSPB Decision?

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By Deborah Hopkins, October 24, 2022

FELTG Nation, we have our first 2022 MSPB decision with a dissent! Let’s take a look.

The appellant was a GS-14 Security Specialist at DTRA. One morning, he put food from the cafeteria’s self-serve breakfast buffet in a container, paid for it, and put the container in a bag. He then returned to the breakfast buffet, removed the container from the bag, put more food in the container, and returned the container to the bag. He then left the cafeteria without paying for the additional food, which was valued at $5.

A cafeteria employee who witnessed the incident reported it to her supervisor, and the matter was referred to the OIG. Investigators interviewed the appellant and the cafeteria employee, reviewed the video surveillance footage, and concluded that the appellant “knowingly took food from the cafeteria without rendering payment.”

The agency proposed removal based on a charge of larceny in violation of 18 U.S.C. § 661. The Deciding Official (DO) upheld the removal.

On appeal, the appellant claimed his failure to pay for the second helping of food was inadvertent and occurred as a result of his Type 2 diabetes. He stated that he urgently needed to eat because his blood sugar level was low, and that his fixation on eating caused him to lose focus on paying for the additional food.

The Administrative Judge (AJ) assessed the appellant’s credibility and determined the blood sugar argument was not convincing. The judge also noted the appellant failed to exhibit a clear, direct, or straightforward demeanor during his testimony. In addition, his testimony was not consistent with the record evidence, including the cafeteria video footage.

On PFR, Members Harris and Limon held that the DO failed to appropriately consider all relevant Douglas factors in determining the penalty.

The de minimis nature of the theft. The DO said that “what matters is the action,” and someone who would steal “has a character flaw” and “should not be working as a senior security professional … with a security clearance in the Department of Defense.”

The appellant’s 30 years of discipline-free service and the appellant’s outstanding performance record.

The DO referenced these factors as “NEUTRAL” and at hearing that she considered these factors irrelevant because stealing “shows a character flaw.”

The Board majority said the DO should have considered those factors as mitigating, rather than neutral.

Another interesting piece of the case: Although not addressed by the DO or the AJ, the Board held that the appellant did not have custody or control over the stolen items as part of his official duties. The Board considered this a mitigating factor as well. The outcome: “A 90-day suspension recognizes the seriousness of the offense and its severity.”

Member Leavitt disagreed with his colleagues. In the dissent, he said the agency should have received penalty deference. His explanation relied on video evidence of the appellant that indicated he was hiding from a police officer in the cafeteria and, therefore, was aware of his actions. In addition, the appellant initially answered the OIG investigator’s question denying the conduct, then changed his story when shown the security video.

Member Leavitt also wrote that he believed the DO considered all the DFs, and properly determined that the mitigating factors were outweighed by “the level of responsibility, the fiduciary responsibilities, and the expectation of exemplary personal conduct.” His impression of the penalty: “To me, the deciding official clearly demonstrated that she considered all specific, relevant mitigating factors before determining the penalty and showed that the agency’s judgment to impose a removal did not clearly exceed the limits of reasonableness.”

Chin v. DOD/DTRA, 2022 MSPB 34 (Oct. 7, 2022).

In speaking with students and with other FELTG instructors about this case, I’ve concluded that not everyone will agree with the outcome.

  • Some of you will agree with the Board because a removal seems too severe for such a small amount of money.
  • Others of you might think that removal was warranted given that the conduct violated the law.
  • Some of you might personally disagree with the removal but acknowledge that the agency should receive deference on the penalty, as it was not outside the bounds of reasonableness.
  • And others might think a different penalty was appropriate.

Let’s continue the discussion December 5-9 during MSPB Law Week. [email protected]