What Should be Expected When Employees are Expecting

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By Dan Gephart, August 14, 2023

The Equal Employment Opportunity Commission published its Notice of Proposed Rulemaking to implement the Pregnant Workers Fairness Act last week. Members of the public wishing to comment now have approximately 55 days to do so.

The Pregnant Workers Fairness Act [PDF] (PWFA) has generally flown under the radar. If you haven’t yet paid attention, now might be the time. The EEOC is already accepting charges under PWFA, which requires employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”

Does the act create a new EEO category? How do pregnancy protections under the PWFA differ from those under Title VII and the Americans with Disabilities Act? What are the common effective accommodations for pregnant employees? If you want answers to these questions, register now [PDF, 539.24 KB] for FELTG Instructor and Attorney at Law Katherine Atkinson’s upcoming two-hour virtual training class Everything You Need to Know About the Pregnant Workers Fairness Act on Sept. 14.

In the meantime, here are a few points to remember:

  1. Do not tie an individual’s job performance or pay to their history of pregnancy. This seems kind of obvious now, right? But back in 2008, an air traffic controller was denied a pay increase for the previous performance year. How do we know her maternity was the reason? Well, her manager said the quiet part out loud. “Just keep doing what you’re doing and I’ll see what I can do for you next year,” the manager said, “unless you plan on taking maternity leave again. You don’t have something you need to tell me, do you?” Complainant v. Fox, EEOC App. No. 0120122370 (Oct. 24, 2014)
  2. It’s not your role to “protect” a pregnant employee. A desk officer was selected for a new position, which was contingent on her completing a two-week training session. Per the agency, which cited “team camaraderie,” the training needed to be completed during one two-week stretch. As it got closer to the training, the agency made the decision to not allow the employee to attend the training because her due date fell “within the final two weeks.” The employee requested accommodations that would allow her to attend the training. The agency admitted that the employee’s pregnancy played a role in its decision, and that supervisors were concerned about her driving and taking the stairs. Well-meaning discrimination is still illegal discrimination. Roxane C. v. DoD, EEOC App. No. 0120142863 (Jul. 19, 2016)
  1. Treat individuals who are pregnant (or have pregnancy-related conditions) the same as others on the basis of their ability or inability to work. A letter carrier on a one-year appointment had an excellent attendance record, until her high-risk pregnancy forced her to miss work due to pre-natal appointments and medical incapacitation. According to the letter carrier, one supervisor told her she should have an abortion unless she wanted to be fired.

The letter carrier was not reappointed after her term expired. The agency cited her attendance issues as a reason. She was the only transitional employee not reappointed because of attendance. Others were not reappointed because of poor work performance or instances of bad driving. Meanwhile, an employee who similarly experienced attendance difficulties because of a foot injury was reappointed.  The EEOC ordered the agency to immediately reinstate the letter carrier, and provide her with appropriate back pay, benefits, and seniority. Robertson v. USPS, EEOC App. No. 01956011 (Jan. 5, 1998).

  1. Know all of the applicable laws. The cases detailed above were violations of Title VII, which protects employees from discrimination based on pregnancy, childbirth, and related medical conditions. The PWFA requires employers to provide reasonable accommodation, just as the Americans With Disabilities Act does for employees with disabilities. While pregnancy is not a disability under the ADA, some pregnancy-related conditions may be. There is also the Family and Medical Leave Act, which provides covered employees with unpaid, job-protected leave for certain family and medical reasons; and the new PUMP Act, enforced by the Department of Labor, which broadens workplace protections for employees to express breast milk at work. [email protected]

 

First-time Caller, Long-time Loss of Confidence and Trust

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By Dan Gephart, July 18, 2023

Sometimes, a Federal employee’s misconduct is so far beyond the pale that it’s impossible to ever again trust that employee. That was certainly the case for a certain IRS contact representative/Howard Stern devotee. Sorry, I meant to say former IRS contact representative. (I don’t know the status of the ex-employee’s Stern fandom).

The employee arrived at work and called the Howard Stern radio show on his personal cellphone. He was put on hold. When the employee’s 8 am shift started, he began handling incoming phone calls from taxpayers on his work phone.

Two hours later, the Stern show took him off hold. The employee didn’t realize this and continued his conversation with a taxpayer, which was now being broadcast live. He unknowingly shared the taxpayers’ personally identifiable information, including her phone number and the amount of back taxes she owed, to thousands of Sirius XM listeners.

Howard Stern shouted the employee’s name to get his attention. The employee then put the taxpayer on hold to talk to Howard Stern, where he “gleefully” identified himself as a Federal employee.

It’s no surprise that the agency removed the employee, nor that the MSPB upheld that removal earlier this year, citing the effect of the employee’s misconduct on his supervisors’ confidence, while questioning his potential for rehabilitation. Forsyth v. Treasury, NY-0752-16-0246-I-1 (Mar. 15, 2023)(NP). Regarding the latter, the employee was directed to make a post-incident call to the Howard Stern show to ask them to not rebroadcast the telephone exchange, which the employee did, while also requesting a tour of the show’s broadcast studio.

A few months back, Ann Boehm extolled the value of Douglas Factor Five in her monthly Good News column. Douglas Factor 5 is consideration of “the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties.”

FEMA similarly lost confidence in a Senior Executive Service employee who misused her position to help a friend gain employment at FEMA. The SESer also provided her friend with personally identifiable information of FEMA employees. Clark v. Department of Homeland Security, DC-0752-13-0661-I-1 (Feb. 21, 2023)(NP).

The employee, who worked in the agency’s Chief Component Human Capital Office, pointed to a positive evaluation she received after the incident to argue that her supervisor had not lost confidence in her. The Board held, however, that “the penalty judgment belongs to the agency, not to an appellant’s supervisor … in the absence of an agency’s failure to consider the relevant Douglas factors adequately, a supervisor’s opinions are insufficient to overcome the agency’s judgment concerning the appropriateness of the agency-imposed penalty.”

How much confidence would you have in an employee who “golfed during official duty hours on at least 205 days for which he claimed no annual leave on his official timesheets.” In Sheiman v. Department of Treasury, MSPB No. SF-0752-15-0372-I-2, at 15 (May 24, 2022) (NP),  the Board agreed removal was the right penalty, stating that it was “clear from the deciding official’s testimony that his loss of trust and confidence in the appellant played a major role in his decision.”

The MSPB decisions in this article have been issued within the last couple of years. For guidance on increasing the chances that your removals match the Board’s view on penalty assessment, register for Charges and Penalties Under the New MSPB on August 1. This half-day session is part of FELTG’s weeklong Federal Workplace 2023: Accountability, Challenges, and Trends event. [email protected]

And Now a Word With … OFO Director Carlton Hadden

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It can be quite easily argued that Carlton Hadden is the face of the Equal Employment Opportunity Commission’s Federal business. He recently took time to answer our questions. Learn more.

Read more

Don’t Become a Meme: Know What Is a Protected EEO Activity

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By Dan Gephart, May 16, 2023

Record scratch.

Freeze frame.

“Yep, that’s me. You’re probably wondering how I got here.”

I often think of this movie-cliche-turned-meme when I read or hear about EEO reprisal. I picture a supervisor, sitting in an EEOC-ordered training, explaining how an employee made claims about discrimination that had no basis, and were eventually dismissed. However, in a huff of frustration or anger, that supervisor said or did something rash that cost his agency and landed him in the training.

The EEOC defines reprisal, aka retaliation, as “treating employees badly because they complained about discrimination on the job, filed a discrimination charge or complaint, or participated in any manner in an employment discrimination proceeding.”

It’s human nature. A knee-jerk reaction. Someone has accused you either directly or indirectly of a violation of the law and, in the moment, you say or do something that is influenced by your emotional state. It’s no wonder reprisal claims make up such a big bulk of EEOC’s case load. And what we’ve seen trip up many supervisors is that you don’t have to be directly accused of discrimination for reprisal to be found. The employee doesn’t even have to file a complaint before the reprisal claim arises. Remember that definition in the previous paragraph and consider the key words: “or participated in any manner in an employment discrimination proceeding.”

The complainant in Green v. Secretary of Navy, EEOC Appeal No. 01964701 (1997) alleged he was subjected to discrimination in retaliation for prior EEO activity, naming the following incidents:

  • He was forced to assume duties and responsibilities without commensurate pay and adequate personnel.
  • He was forced to work in an unsafe environment.
  • The agency failed to remit documentation to him.
  • He was forced to work under “management personnel who commit waste, fraud and abuse.”
  • The agency threatened to eliminate his position.

The agency dismissed this portion of the appellant’s complaint for failure to state a claim. Basically, the agency’s response was: What EEO activity? Before this all went down, the employee had notified the agency of his intention to testify on behalf of other employees alleging discrimination. But he never actually testified.

Doesn’t matter, the EEOC ruled: Simply notifying the agency of his intention to provide testimony on behalf of other employees alleging discrimination was participation in protected EEO activity.

On a related note, a seminal case in this area is the Supreme Court decision Thompson v. Northern American Stainless, LP, 131 S. Ct. (2011). In Thompson, it wasn’t the employee who participated in an EEO activity – but the employee’s fiancée. Previous courts, including the District Court in this case,  had ruled that retaliation was limited to “persons who had personally engaged in protected activity by opposing a practice, making a charge, or assisting or participating in an investigation.”

The Supreme Court decided differently: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”

So, add close relationship/association with individuals who file complaints as close enough to constitute protected activity. Just how close should that association be? Well, we don’t really know that. In Thompson, the Supreme Court declined to “identify a fixed class of relationships for which third-party reprisals are unlawful.”

What other activities are protected? Here are some activities that are a little more obvious, yet still too-often overlooked:

  • Contacting an EEO counselor.
  • Filing a formal EEO complaint, even if it’s a frivolous complaint.
  • Testifying at an investigation or hearing.
  • Representing a complainant.
  • Providing documents to a complainant.
  • Requesting a reasonable accommodation.

Look at all the different activities that are protected. It’s no wonder there are so many successful reprisal claims. If you want to avoid the being a meme, think before you talk, only take actions based on legitimate business reasons, and, oh yes, join Bob Woods this Thursday (May 18) at 1 pm ET for Avoid the Pitfalls of EEO Reprisal.  [email protected]

Forecast Calls for Category 1-3 Harassment: What Will You Do?

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By Dan Gephart, April 17, 2023

It’s no secret the current administration wants the Federal workplace to be more inclusive. A key to achieving that goal is rooting out harassment. This is not a new concern. Several years ago, agencies started their own anti-harassment units, which don’t fall always under the auspices of its EEO Office. These anti-harassment teams are charged with limiting harassment of all types – even those that don’t result in legitimate claims of discrimination.

For years now, the EEOC has been emphasizing the need to address the broader range of harassment, noting time and again that without an exhaustive anti-harassment policy, agencies cannot be model EEO employers. You’d be hard-pressed to find an agency today that doesn’t have some type of anti-harassment policy.

Yet too many people still think harassment is solely an EEO issue. Not us here at FELTG. If you’ve attended any of our courses that address harassment, you’ve heard FELTG President Deborah Hopkins and other instructors say quite clearly: Harassment is misconduct. It must be addressed, whether it has led to an EEO complaint or not.

And whether alleged harassment goes through the EEO process or not, an investigation will likely be required. FELTG offers numerous opportunities to improve your investigations skillset over the next few months, beginning with the three-day virtual program Conducting Effective Harassment Investigations April 25-27. Workplace Investigations Week will be held August 14-18, and the two-hour training Misconduct Investigations: Get Them Right From the Start takes place on July 25. Also, be on the lookout for the official announcement soon of Bad Detective: The Mistakes That Hamper Agency Investigations with special guest presenter Roslyn Brown. That session will take place on Aug. 4, as part of FELTG’s annual Federal Workplace: Accountability, Challenges, and Trends event.

Let’s look at different categories of workplace harassment. The actual steps you need to take after each type of harassment are different. Regardless, take all harassment claims seriously and act promptly.

Category 1 – EEO harassment. An allegation has been made that someone has engaged in harassing behavior due to the complaining employee’s protected category. (To recap: Those protected categories are sex, race, color, national origin, religion, genetic information, disability, age, participation in protected activity). Could this be a legitimate complaint of EEO discrimination? It very well may be, but at this point, it’s still too early to tell. The person alleging harassment has 45 days to make contact with an EEO counselor. But you will need to investigate right away, whether they contact a counselor or not.

Category 2 – Actionable EEO harassment. Once the formal complaint is filed and the EEO office accepts the claim, the agency is on the clock. It’s time for a prompt, thorough investigation to determine the facts: was there unwelcome conduct, based on a protected category, so severe or pervasive it created a hostile, intimidating or abuse work environment?

Category 3 – Non-EEO harassment. Is it just me or does it just seem like bullies are pouring out of the woodwork lately? Mocking an individual’s work habits. Giving co-workers unflattering and unwanted nicknames. Pestering a peer repeatedly with requests to go on a date. Sometimes it’s hard to fathom the sheer gall of these bullies.

That’s not to say that these actions never meet the elements of proof for EEO harassment. They may. But smart bullies (there are a few) seem to know how to stop short of those requirements. Yet just because these actions may not lead to a legitimate EEO complaint doesn’t mean they should be overlooked.

Other examples of non-EEO actions to keep an eye on are conduct that is unprofessional, threatening, intimidating, violent, and disturbing.

Category 4 – Not harassment. The final category covers actions that are not harassment, despite what employees say. Several agency officials have told us of an increase in complaints lodged against supervisors for actions that are, quite frankly, what you’d expect a supervisor to do.

  • Assign work.
  • Set deadlines.
  • Create a work schedule.
  • Assess performance or providing feedback.
  • Manage work groups.
  • Set a dress code.

Just because an employee disagrees with his supervisor’s management style does not make a case of harassment. If the actions listed above are “exercised in a reasonable and professional manner,” they are not harassment. The same goes for any other actions supervisors have the right to take based on 5 USC 301-302. Deb Hopkins’ article from a few months ago addressed these faux claims.

Here’s the takeaway: Do whatever you can to prevent harassing conduct in the workplace. If you do that, harassment won’t happen, right? No, of course harassment is still going to happen from time to time. And when it does, know your options and responsibilities to correct the conduct before it happens again.

Also, it sure wouldn’t hurt to get to know your agency’s anti-harassment policy a little better. [email protected]

And Now a Word With … EEOC AJ Meghan Droste

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By Dan Gephart, April 11, 2023

Long-time members of FELTG Nation recall Meghan Droste as an engaging instructor and writer, who could break down difficult subjects into easy-to-understand guidance. At the same time, she’d often leave this FELTG Newsletter Editor with an earworm or two.

Ms. Droste, now an administrative judge with the Equal Employment Opportunity Commission, will kick off Day 1 of FELTG’s upcoming Emerging Issues in Federal Employment Law event, presenting Avoiding Pitfalls: Advice from an EEOC AJ on Tuesday, April 18, 2023, at 10:30 am ET.

[The theme for Day 1 is Lessons Learned and we’ll also have presentations from former MSPB Member Tristan Leavitt and FELTG’s own Joseph Schimansky. Check out the full agenda. Register [PDF, 1.58 MB] for one session, one day, the whole event or any combination of sessions – it’s up to you.]

We recently caught up with Ms. Droste to discuss her career transition and what she plans to cover in her session on April 18.

DG: As a practicing attorney, you were very familiar with the EEO process. Did anything surprise you or was there anything about the process you didn’t realize until after you became an administrative judge?

MD: When I first started it was very interesting to see all of the work that is done “behind the scenes” — everything that AJs have to juggle that the parties don’t see. But I think the most surprising thing was the number of self-represented, or pro se, complainants who we see in the Washington Field Office. As a complainant’s representative I of course did not have any involvement in those types of cases, and even when I represented a Federal agency, I often encountered representatives on the other side. The process is meant to be accessible for self-represented complainants and it has been very interesting to see just how many there are.

DG: What is the most common misunderstanding about the EEO process?

MD: I think one of the most common misunderstandings, from both complainants and agencies, is an assumption that the hearings process is informal and not as serious as litigation in Federal court. AJs don’t wear robes or sit in courtrooms, but we still issue orders and set schedules that the parties have to abide by. It seems that some parties don’t understand that and think that deadlines are optional or that they can ignore their obligations that we set out in our orders or are in the EEOC’s Management Directive 110.

DG: What’s your advice to parties who are new to the EEO process on the importance of the initial conference?

MD: It is so important for the parties to be prepared for an initial conference (IC). By the time I hold an IC, I have reviewed the Report of Investigation, the parties’ Preliminary Case Information submissions, and anything else that they have uploaded to the Public Portal/FedSep; I expect the parties to have done the same and to be familiar with their case. The parties should be ready to address all of the topics outlined in the Acknowledgment Order and answer any questions I have for them about the record or their discovery needs. If they aren’t prepared, it slows down the IC and can result in a party waiving its right to raise an issue or object to something that I cover during the IC.

DG: You will be discussing the importance of civility in the EEO process at Emerging Issues in Federal Employment Law. Can you provide an example where lack of civility negatively impacted a party’s position in settlement or litigation?

MD: One way that this comes to my attention is when parties are filing a motion for an extension or a motion to compel. I generally do not see the parties’ interactions with each other, but when it comes time to file a motion that requires the party to note the opposing parties’ objections to the motion or to refer to the parties’ discussions about discovery, I see copies of correspondence between the parties as exhibits.

It’s easy to see when the parties are being civil to one another and when they are not. It’s also easy to see how, as the parties become more heated, they are less willing to work with each other to resolve routine issues. This impacts the issue they are filing the motion for and can make any later settlement discussions more difficult, if not impossible, as each side digs into their own positions and are unwilling to compromise.

DG: Agencies often miss the mark in their pleadings. What’s the most common problem with pleadings and how do you suggest that problem be fixed?

MD: Two things come to mind right away, and both are easy for agencies to fix. The first is exceeding the page limits for motions or otherwise failing to follow the requirements I set out in the Case Management Order (CMO). I remind the parties during every IC to review the CMO thoroughly because each AJ does things a little differently. Despite this, I can always tell when a party has failed to do so, and it can have a real impact for them. For example, if a party exceeds the page limit, I stop reading the motion at the last allowable page. I don’t give any consideration to any argument that comes after the page limit. The second common problem is allowing the agency’s arguments to creep into the statement of facts. The statement of facts should be, as it sounds, just the facts. An agency loses some credibility with me in the summary judgment process if it tries to spin the facts rather than presenting them without argument.

Have your own questions for Judge Droste? Register now for Emerging Issues in Federal Employment Law. [email protected]

And Now a Word With … FLRA CADRO’s Michael Wolf (Part II)

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By Dan Gephart, May 27, 2923

Michael Wolf, Director, Collaboration and Alternative Dispute Resolution (CADRO)

In the first of this two-part article, we talked to the Federal Labor Relations Authority’s Michael Wolf, who is director of the Authority’s Collaboration and Alternative Dispute Resolution (CADRO) program about that program’s success. [Editor’s note: Visit here to learn more about CADRO and its services.]

Wolf described CADRO’s style of mediation as “situational” as opposed to “facilitative or evaluative or some other label.” The key, per Wolf, was that the “parties define success.”

We wondered how CADRO’s approach applied to agencies trying to resolve disputes internally. [For more on settling disputes, join FELTG on April 12 for Drafting Enforceable and Legally Sufficient Settlement Agreements.] We caught up to Wolf in between mediations and picked his brain on this important topic.

DG: What do you think is the biggest obstacle to resolving disputes?

MW: It depends. I realize that is not really an answer, but there is no other simple response that is also accurate. Most disputes we see in CADRO erupt from a set of unique causes, characteristics, and obstacles to resolution. From the standpoint of a third party who has no stake in the outcome, we help party representatives identify their obstacles and then help them adopt what they believe to be the most effective way to overcome those obstacles. This approach tends to result in parties that are more invested in making the outcome successful when compared to an outcome imposed by an outside source of authority such as a judge or arbitrator.

DG: What physical environment best creates an atmosphere for successful mediation?

MW: With rare exception, it is best for the physical environment to enable the mediator and participants to be free of unnecessary distractions, engage with an appropriate level of confidentiality, communicate effectively, utilize joint and separate sessions, consult with sources of information and authority when necessary, and be able to fulfill external responsibilities when required.

  • The location should be reasonably available and accessible.
  • Cost should not be a factor in whether a party is adequately represented.
  • The space should not create a perception of favoritism or bias.
  • The need to work outside of “normal” business hours might be a factor.
  • No party should feel unfairly disadvantaged by the physical environment, and it should be compatible with the mediator’s style, methods, and skillset.

I’m sure there are other considerations, but these are what immediately come to mind. I view available options based on five potential methods of engagement:

  • Synchronous and in-person
  • Synchronous and remote
  • Asynchronous and in-person
  • Asynchronous and remote
  • Hybrid – a combination of synchronous and asynchronous, in-person and remote

Each of these methods of engagement give rise to a different set of considerations concerning the physical environment. For example, if one or more participants is expected to engage remotely, the impact of differential technology skills, equipment, support, and access could affect both process and outcome of the mediation.

DG: You’ve been an advocate for the appropriate use of technology in mediation.

MW: I’ve been an advocate for the appropriate use of technology in mediation since at least the late 1990s when I was the FMCS Director of Mediation Technology Services. Today, CADRO mediation and settlement conferences would not be possible without a very heavy reliance on technology and remote engagement, both synchronous and asynchronous. I am not a believer in the use of technology to repair fractured relationships, but I have found it highly effective when used appropriately to mediate labor disputes.

At the same time, I tend to be “old school.” I prefer in-person engagement for disputes that are complex, serious, and consequential. But I also recognize that in-person engagement can enable disputants to misunderstand each other as well as understand each other. At times, in-person engagement can cause a disputant to feel threatened and therefore become defensive, maybe misinterpret what is said and done, and become a barrier to success.

Sometimes mediators can control the physical environment. Other times, we have more control over the factors that impact and result from the physical environment. A skilled mediator should be able to spot the issues on the fly and make necessary adjustments when needed.

DG: Can you name a few steps that someone in a dispute can do to bring two sides together – even if they are on one of the sides?

MW: Let me start with a few of the things I suggest that person should not do. They should:

  • Not pretend to be neutral if they are linked to one of the disputants.
  • Not try to determine or shape outcome.
  • Do their best to not be influenced by judgements or assumptions about the disputants or their issues.
  • Avoid the urge to offer advice (except about process).
  • Not try to save either disputant from themselves.
  • Actively avoid shifting the balance of power between disputants.
  • Not try to shape the disputants’ “truth.”
  • Avoid becoming so frustrated that they feel compelled to adjudicate the matter.
  • Not reveal matters shared with them in confidence.

Above all else, “do no harm.”

Now a few ideas about what they might do to help. First and most importantly, listen actively! Second, help them agree on a problem statement that is in the form of a question to which they both seek the answer. If they can’t agree on the question, it is unlikely they will agree on an answer. Jointly attacking the question can also help them avoid attacking each other. Third, help each person first explore separately and then share jointly why they care so much about the answer to that question. Write down the reasons they care (bullet list, not long paragraphs). Help them compare and contrast what they care about to see what their lists have in common. Generally, they will find it easier to agree on solutions if they share a common list of reasons why they care about the answer to the question.

Fourth, facilitate joint brainstorming of possible answers to the question. Encourage both to offer at least several ideas. The more the better. Get them to think outside the box. Discourage criticism of each other’s ideas. Try to write down every idea, even the ones that seem wacky. Encourage them to build on each other‘s ideas. Then discover the ideas that rise to the top and help them explore whether one or possibly a combination of ideas might be worth trying.

If they seem to agree on one or more ideas as a path forward, help them develop an action plan to implement the ideas. Follow up in several days and then again in several weeks. Help with any operational issues. Refer the matter to someone with expertise and experience if necessary.

[email protected]

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]

Do the FELTG Check-in and Ensure Accommodation is Still Effective

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By Dan Gephart, February 14, 2023

It was a reasonable accommodation success.

Until it wasn’t.

The accommodation process is a fluid one. You can’t provide an accommodation and then forget about it. This is particularly important now, as many employees with reasonable accommodations make their way back to the physical workplace.

Kristopher M. v. Department of Transportation, App. No. 2019001911 (EEOC 2020) provides a perfect lesson on the importance of continuous communication with employees AFTER they receive accommodations, something that we at FELTG have coined the “Check-in.”

[Editor’s note: For more on this topic, register for Revisiting Existing Reasonable Accommodations, a 60-minute webinar on April 13.]

Upon his hiring in 2005, an IRS agent requested and received a BAT keyboard as a reasonable accommodation. The agent had paralysis in his left hand and the keyboard allowed him to enter data with his right hand.

So far, so good, right?

Fast-forward seven years. The employee’s typing workload increased, causing serious strain, fatigue, and a tingly pain in his right hand. The BAT keyboard was no longer an effective accommodation. The agent requested Dragon software in 2012, and the agency approved it. The software was installed on the employee’s computer, and he was provided training.

So far, so good, right?

Unfortunately, the Dragon software did not work well with the agent’s computer. His computer screen would freeze. Applications would just shut down. He was unable to simultaneously use the Dragon software with the other software programs required for his job (Word, Excel, etc.).

It is here, FELTG Nation, where the process broke down.

The agent struggled with the software and let the agency know. Per the EEOC decision, it appears that there was a back-and-forth between the reasonable accommodation staff and IT about who had the responsibility to address the employee’s computer issues. Meanwhile, the employee went back to using the BAT keyboard. He developed carpal tunnel syndrome in his right hand and pain in his right arm and neck.

Even though it had twice listened to the employee and gave the employee his requested accommodation, the agency still failed to provide the employee with an effective accommodation, per the EEOC AJ.

On appeal, the commission determined the agency’s efforts to deal with the Dragon software/computer issues were either unduly delayed or only partially implemented. The Dragon software was not an effective accommodation, the EEOC ruled. It ordered the agency to engage in a rigorous interactive process with the employee for a 60-day period to come up with effective accommodations.

Wouldn’t you rather just do the FELTG Check-in with employee, see how the accommodation is working and make the adjustments, when necessary, rather than be ordered by the EEOC to conduct a specified period of the interactive process?

The FELTG Check-in is free and ensures that your employee has all the tools he/she/they need to do the job’s essential functions and help the agency meet its mission. Skipping the FELTG Check-in could be damaging to productivity, morale, and the agency’s bottom line. Beyond the required interactive process, the agency in the Kristopher case was required to:

  • Pay the agent $75,000 in compensatory damages within 60 days.
  • Pay the agent $68,761.69 in attorney’s fees and costs ordered by the AJ within 60 days.
  • Provide the supervisors and coordinators involved to take at least eight hours of reasonable accommodation training.

Remember: Your agency’s obligation to provide an effective accommodation does not end when you provide an accommodation. You must ensure the accommodation is actually effective. [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]