Why F-Words Get Agencies in Trouble

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By Deborah Hopkins, October 18, 2022

For as long as we’ve been a company (since 2001, in case you’re wondering), FELTG has taught agency reps and supervisors that if you’re charging misconduct that begins with an f-word (falsification, fraud, false _______, etc.), you’d better make sure you have evidence the employee intentionally provided false information. Otherwise, you will lose the charge, which often means losing your case.

So, it was no surprise to see a recent MSPB decision, Conaway v. Commerce, CH-0752-16-0166-I-2 (Sept. 22, 2022)(NP), that overturned an agency’s discipline because of an f-word the agency couldn’t prove. The real heartbreaker is that this case cost the agency eight years and more than a quarter million in back pay, thanks to the lack of quorum at the MSPB. And to be fair, it also dragged out for eight years on the appellant’s side which is no picnic either.

In Conaway, the agency removed the appellant, a Census Bureau GS-6 Field Supervisor, on one charge of providing false information regarding Census Bureau questionnaires, with one specification regarding a March 24, 2014, interview.

The MSPB equates this type of charge to one of falsification. In order to have a falsification charge upheld, the agency must prove the following by preponderant evidence:

  • the appellant supplied incorrect information; and
  • did so knowingly with intent to defraud, deceive, or mislead the agency for her own private material gain.

Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶¶ 10-12 (2014).

The basic premise of Conaway’s misconduct was that she entered information into a survey form she had obtained in a months-earlier interview with a questionnaire respondent, even though procedures required her to ask the respondent questions and enter information in the current interview (held March 24, 2014). At hearing, Conaway presented unrebutted testimony that the respondent had provided her with information during an interview weeks prior to the March 24 interview, and had told her that “nothing had changed” during her phone conversation with the respondent about the March 24 questionnaire.

Here’s how the case fell apart for the agency, according to MSPB:

[While] the record clearly established that the appellant entered information into the survey …that she did not obtain from the March [24], 2014 interview, the agency has not provided any evidence suggesting that this information was incorrect, as required to prove a charge of falsification. To the contrary, it is likely this information is correct given the appellant’s unrebutted testimony…

Moreover, even if this information was incorrect, we find that the appellant had a reasonable good faith belief in the truth of the information, which precludes a finding that she acted with deceptive intent. Therefore, we find that the agency has not proven a charge of falsification.

Although the appellant’s handling of the … survey may have been contrary to established procedures or otherwise improper, the agency did not assert such a charge against her. Rather, as stated above, the agency charged her with providing false information … The Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency and may not substitute what it considers to be a more adequate or proper basis. Therefore, we cannot sustain a charge of failure to follow survey procedure against the appellant, and such failure cannot serve as a basis to sustain a charge of falsification. In light of the foregoing, we reverse the initial decision in part and do not sustain the appellant’s removal. (Citations omitted.)

I talked to FELTG Founder Bill Wiley about this case. He believes the agency made two notable mistakes, both of which FELTG addresses in our training:

  1. If you charge The Effing Word (Falsification), you have to prove, inter alia, that the information provided is false. That’s straight from the Charges day of MSPB Law Week, next held December 5-9. Here, although the employee did not follow procedures, the actual information provided was in fact true. Therefore, bye-bye Effing charge.
  2. The agency did a decent job of describing how the employee failed to follow procedures. However, they did that in some sort of “Background” section rather than in the “Charge” section of the proposal. Agency representatives who attend FELTG’sMSPB Law Week and learn not to waste words in a Background section hardly ever have to tell payroll to cut a backpay check for over a quarter of a million dollars.

We hope this helps you think twice before the next time you charge an F-word. Lots to learn from these new Board cases, and lots of lessons re-affirmed too.

Don’t Forget the Accommodation of Last Resort

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By Deborah Hopkins, October 18, 2022

In our Reasonable Accommodation training classes, we at FELTG focus on the framework set out in the law. It’s the best way to ensure your agency is handling every request appropriately. Here’s the basic approach once it’s been established the employee is a qualified individual with a disability. This is the approach that FELTG founding father Bill Wiley calls the Accommodation Three-Step:

  1. Look for a reasonable accommodation that will allow the employee to perform the essential functions of the job (by engaging in the interactive process) without causing an undue hardship.
  2. If accommodation is not possible, consider the accommodation of last resort: a reassignment to a vacant, funded position for which the employee is qualified, at the current grade level.
  3. If nothing is available at the employee’s grade level, look for a vacant, funded position at a lower grade level.

A recent case, Shanti N. v. IHS, EEOC Appeal No. 2019004882 (Sept. 14, 2021) [PDF], illustrates how problematic it can be when an agency stops at Step 1. In Shanti N., the employee, a GS-9 staff analyst, requested full-time telework to accommodate her medical conditions (TBI, PTSD, and pregnancy). Her supervisor denied the request because in 2017 when the events of this case occurred, staff analysts were required to be in the office full-time because of the customer service nature of their positions.

(This might be a good time to mention that things have changed since then, and FELTG is holding a class on November 17 titled Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency, where we’ll discuss how telework has altered Reasonable Accommodations – and much much more.)

Back to Shanti N. Once her telework request was denied, she requested a reassignment to a telework-friendly position. Her supervisor agreed, but then made no effort to conduct a search for a vacant, funded position.

According to the case, agency HR “experienced difficulties in completing the reassignment process because [the agency] had a policy of giving absolute hiring preference to Native Americans and Alaskan Natives and Complainant was neither.” The supervisor then explained that it would be difficult to reassign the complainant to another position in the agency because the complainant would have to compete for a vacant position and would be discounted by a candidate with “Indian Preference.”

On the alternative side, the complainant exercised her diligence and actually identified several positions for reassignment in another subcomponent of the agency. When she made these suggestions, the agency indicated it would be unable to complete the reassignment, and that it was on the complainant to obtain and secure the  reassignment on her own.

As you can imagine, the EEOC did not take this well. They found the agency did not meet its obligation to identify vacant reassignment positions, or to confirm whether the Indian Preference policy would actually prevent a reassignment.

In addition, the EEOC found that the agency had not shown that reassigning the complainant would be an undue hardship, and it failed to engage in a good faith search for a reassignment, which violated the Rehabilitation Act.

A simple mistake that ended up being quite costly, not just to the agency but to the employee as well. Don’t let it happen to you. [email protected]

WIGI Documentation Can Justify a PIP Under Santos

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By Deborah J. Hopkins, September 19, 2022

I don’t know about you, but I am still loving the fact that we have a fully functioning MSPB again. While you might be tempted to skip over the non-precedential (NP) cases, you should rethink that because we have found several jewels in NP cases over the past six months.

One of the the trends we’ve seen in 432 actions – performance-based removals and demotions – is that the MSPB has been remanding cases if the record doesn’t contain substantial evidence of unacceptable performance that justified the agency’s decision to place the employee on a PIP. And because that requirement didn’t exist until March 22, 2021 (Santos v. NASA, No. 2019-2345, Fed. Cir. Mar. 11, 2021; see also Singh v. USPS, 2022 MSPB 15 (May 31, 2022)), most of the 432 cases are being remanded on this point. Santos never explicitly stated what types of evidence agencies could use to justify the PIP, instead ruling, “we are not prescribing any particular evidentiary showing with respect to the employee’s pre-PIP performance. Performance failures can be documented or established in any number of ways.”

So, one of the items that jumped out at me in a brand-new case (Slama v. HHS, SF-531D-15-0266-I-4; SF-0432-16-0496-I-1 (Aug. 24, 2022)(NP)) is we now know at least one type of evidence the Board will consider in pre-PIP unacceptable performance determinations.

A bit of history first: In Slama, the appellant’s performance problems started in 2011. Bigger problems emerged in performance year 2013, and he received a Level 1 summary rating in 2014. His unacceptable performance that year led to the denial of a Within Grade Increase (WIGI), which he appealed to the MSPB. For reasons not explained in the case, the appellant was not put on a PIP until 2015 after he received yet another Level 1 summary rating. The appellant failed the PIP and the agency removed him later that year. He appealed … and into the backlog the new case went.

Fast forward to 2022, the return of the quorum, and the new Santos requirement. In Slama, the MSPB joined his two appeals (one over the WIGI denial and the other over the 432 action) and, among other things, decided that the material that forms the basis of a WIGI denial can also be used to justify a PIP and meet the Santos requirement. According to the case:

The administrative judge found that the agency demonstrated by substantial evidence that, before being placed on the PIP, the appellant’s performance in the critical elements of administrative requirements, communication, and technical competence was unacceptable [citation omitted]. The administrative judge based her finding largely on the same facts and analysis under which she had affirmed the agency’s [acceptable level of competence] determination in connection with the WIGI denial. ¶25

While WIGI denials are rare, it’s quite interesting (and time saving) that the Board will rely on that same content to show the agency can justify the PIP. It might be helpful for those of you handling the 432 remands to check the WIGI files and see if you have anything you can use. And then join me for Back on Board: Keeping Up with the New MSPB on October 20. [email protected]

EEOC Case Illustrates the Ugliness of Harassment Based on Disability

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By Deborah Hopkins, September 12, 2022

Members of the FELTG Nation are likely familiar with EEO cases where agencies fail to accommodate a complainant’s disability, but there’s another ugly side of disability discrimination that sometimes arises – hostile work environment harassment based on the complainant’s disability. We saw this in a fairly recent EEOC case, Damon Q. v. DOD, EEOC Appeal No. 2020003388 (Aug. 9, 2021). [PDF]

Imagine you have a visible physical disability, and a high-level supervisor mimics your disability and the way you do your job in front of a room full of your co-workers. This exact thing – and more – happened to a supply technician at DLA, a left-hand amputee who, among other things, alleged:

  • During a safety re-enactment meeting in front of the workgroup, the Director mimicked the complainant’s physical disability by “put[ting] his arm up with his elbow bent” and demonstrating the way the complainant performed the task, which humiliated and embarrassed him.
  • After the meeting, the complainant approached the Director to talk to him about his conduct during the meeting, and the Director responded in an intimidating manner.
  • While walking away from the Director because of his intimidating response and mannerisms, the Director walked behind Complainant talking aggressively about his physical disability.
  • A few weeks later the complainant received an email from the safety representative stating that the complainant chose not to come to the regularly scheduled meeting because he did not want to participate in management meetings. This was a misrepresentation of his request to not be required to interact with the Director who had mimicked his disability.

EEOC looked at the facts of this case and disagreed with the AJ, who granted summary judgment for the agency. Interestingly, though, the Commission said the material facts were not in dispute and summary judgment was appropriate – for the complainant. The Commission found the agency created a hostile work environment because the unwelcome conduct based on the complainant’s disability was sufficiently severe or pervasive:

“…[W]e note that in evaluating whether the conduct is severe or pervasive enough to create a hostile work environment, the harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. (citation omitted). In this case, we note that Complainant attested that he felt threatened, embarrassed, and humiliated by the Director’s impersonation of him with his impairment during the safety reenactment. Complainant maintained, moreover, that the Director was also aggressive towards him after he complained to the Director that the mimicking of his disability was offensive towards him. We note that employees observed that Complainant and the Director engaged in a “heated” conversation after the reenactment, and a Material Handler attested that he observed the Director getting closer and closer to Complainant to the point of Complainant putting his arm up between the two of them. As noted above, the Director did not dispute that he demonstrated the crate inspection as if he had no left hand to show that Complainant was not properly performing the task…

According to Complainant, he was so humiliated by the Director’s mimicking of his disability in criticizing his performance in front of employees that he communicated to the Deputy Director, among others, that he no longer wished to attend meetings wherein the Director would be present. Rather than immediately addressing Complainant’s request and concerns of a hostile work environment, the Agency generated CAC meeting minutes noting that Complainant did not want to attend the meeting because he did not want to meet with management. Complainant further received emails wherein he was accused of having a conflict with management. Complainant believed that the meeting minutes and the emails cast him in a negative light, as he only wanted to be away from the Director and did not have a conflict with management as a whole. Upon review, we determine that a reasonable person in Complainant’s circumstances would find that management’s actions were severe enough to create a hostile work environment based on disability… (Damon Q., above, p. 8-9).

The EEOC found the agency liable because the actions were committed by a director and the agency did not take prompt, effective corrective action. When handling disability cases, be careful not to stop at reasonable accommodation, but also be aware that harassment isn’t part of the equation. We’ll discuss in more detail during the virtual event EEOC Law Week, September 19-23.  [email protected]

Q&A About the Douglas Factors Under the New MSPB

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By William Wiley and Deborah J. Hopkins, August 22, 2022

In a recent MSPB case law update (the next one is October 20, if you’re interested), we discussed the Douglas factors and the new comparator analysis the Board laid out in Singh v. USPS, 2022 MSPB 15 (May 31, 2022). This dramatic change in precedent inevitably led to questions, which we thought were worth sharing with FELTG Nation. So here goes.

Q: For the comparator analysis under Douglas, is it required that the Deciding Official (DO) in her decision letter specify or identify any comparable cases, or is it sufficient to state, for example, “in consultation with HR, I considered how the agency addressed similar misconduct in the past.” Wondering what evidence, if any, needs to be put forth in the decision letter regarding comparators.

A: The best practice is for the DO not to consult with anyone they don’t need to. The requirement is for the DO (and the Proposing Official, or PO) to consider misconduct cases they know about that have the characteristics of “same-or-similar misconduct” we discussed in the training. If the DO knows of any cases that fit that definition, or if she decides to ask HR for same-or-similar cases (even though she doesn’t have to), good appellant’s lawyer will grill her on appeal about what those cases involve, and why she felt that they were different. In detail. If the PO/DO were to reference asking HR for same-or-similar situations, and the HR advisor says that there were none, then that HR advisor becomes the appellant’s witness who will be expected to provide details of the cases surveyed.

Unlike expected testimony on appeal, a broad statement will suffice for the purpose of the Douglas factor analysis in the proposal and decision notices. The language we have recommended at FELTG for more than a decade, as long as it is true, is something like: “I know of no other situations in which an agency employee engaged in similar misconduct and was, thereafter, disciplined at a lesser level.”

On the other hand, if the DO/PO knows of similar cases that support the penalty selected, then something like: “In two misconduct cases similar to this situation, removal was determined to be the appropriate penalty.” And finally, if a similar case is known of in which removal was not the selected penalty, something like: “I know of one other case of AWOL in which the employee was not removed. However, in that case there was no significant harm caused by the unapproved absences. In this situation, the employee’s absences caused the agency to expend $5,000 to hire a contract replacement.” Or whatever the distinction may be.

Q: What is the rationale for separately attaching a Douglas factors worksheet instead of solely discussing it within the proposal notice?

A: We’ve seen numerous cases over the years in which the proposal or decision notice contained the Douglas factor considerations along with the misconduct charges. Unfortunately, doing so has the potential of confusing the Board as to which fact statements are relevant to the charge and which are relevant to the penalty. We have learned from history that the MSPB generally expects us to prove every factual assertion relative to the charge (due process requirement), but only most of the fact statements relative to the penalty, although proving everything is always ideal. Therefore, when the misconduct facts get mixed with the penalty facts, the Board has a problem weighing them. We don’t want the Board to get confused about anything we do.

Separately, using a Douglas factors worksheet forces the PO to go through each of the 12 factors, evaluating those that are relevant and noting which are not. We have seen many cases in which an agency lost the penalty because the PO or DO ignored or failed to adequately address one or more factor. A worksheet reduces the possibility of making this mistake. Administrative judges are trained to assess each of the 12 factors in order. A worksheet lays that out for them to the benefit of the agency.

That said, it is not a critical error to include the Douglas factor analysis in the body of the proposal notice. Clearly delineated and identified as penalty factors separate from the misconduct charge facts, encompassing all 12 Douglas factors would work. But there is no reason you would want to go to that extra trouble and accept that extra risk.

A separate worksheet attached to the proposal notice, as we noted in the recent caselaw in the training, helps the Board understand (and affirm) the agency’s action. It is a good idea without a downside.

One final thought. For goodness’ sake, DO NOT violate the employee’s Constitutional right to due process. The Board will automatically reverse a removal, without consideration as to whether there was any harm, if the DO considers Douglas Factors relied on by the PO, but not communicated by the PO to the employee. See Braxton v. VA, DC-0752-14-0997-A-1, August 12, 2022 (NP).

This really is easy, folks. Just have the PO do a Douglas Factor Worksheet, staple it to the Proposal Notice, and fuhgeddaboudit. [email protected]

This Isn’t Harassment: Supervision, Not Hostile Work Environment

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By Deborah Hopkins, August 16, 2022

One of the topics we’ve been discussing in recent FELTG classes is “other harassment,” that is, harassment that’s not based on protected EEO categories. And one of the most common questions we’re asked is this: At what point a supervisor crosses the line from effectively supervising employees to creating a hostile work environment?

Hostile work environment harassment is a term of art in the EEO world, and requires a complainant to

prove three things:

  1. They were subjected to unwelcome conduct,
  2. The conduct was based on their protected EEO category, and
  3. The conduct was so severe or pervasive that it altered the terms, conditions, and privileges of employment.

The below supervisory actions, if exercised in a reasonable manner, are NOT harassment:

  • Assigning work
  • Setting deadlines
  • Creating a work or telework schedule
  • Assessing performance or providing feedback
  • Managing work groups
  • Setting a dress code
  • Disagreement on management style or decisions

The list is not exhaustive. The statute that gives supervisors this authority is 5 USC 301-302, which says the head of an executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business … and to delegate to subordinate officials the authority vested in him … by law to take final action on matters pertaining to the employment, direction, and general administration of personnel under his agency.

Harassment is easy to allege, but not easy to prove. Let’s look at a couple of recent cases.

Case 1

The employee alleged harassment and reprisal when his supervisor avoided him or walked away from him on multiple occasions, and he claimed that his supervisor often responded to his questions by stating he did not know the answer and failed to provide him adequate guidance. He also claimed his chain of command treated him in a “hostile manner” when his supervisor “yelled” at him that he needed to fix something, and when his supervisor “grabbed [his] arm to pull [him] into a room” and “yelled” at him about reporting improper patient care. In addition, he claimed that the chief of staff “yelled at him, accused him of ‘making up our service data,’ and told him to ‘shut up’ during a meeting.

The MSPB, which had jurisdiction over this case because it was an IRA appeal, said that while these actions were indicative of an “unpleasant and unsupportive work environment,” they did not violate the law. Skarada v. VA, 2022 MSPB 17 (Jun. 22, 2022).

Case 2

In a recent case before the EEOC, a complainant alleged multiple incidents of harassment based on race, color, sex, age, and reprisal. Among the incidents she identified:

  • She received a Letter of Warning (we at FELTG recommend you NEVER issue these)
  • She was told that the Letter of Warning was serious and could lead to future disciplinary actions
  • Her access to work-related databases was revoked
  • A supervisor went through her desk to look for documents
  • A supervisor broke a souvenir that was on her desk
  • She did not receive assistance from upper-level management after she informed them her supervisor was targeting her
  • She was eventually removed

In response to the allegations of harassment the agency provided legitimate reasons for its actions, including that the complainant had engaged in 198 specifications of misconduct, including violations of the Privacy Act and Rules of Conduct of Maintenance of Personnel Records, as well as “unauthorized use of non-public information, intentional failure to observe any written regulation or order prescribed by competent authority, and violating the Rules of Behavior.” Also, the complainant did not respond to any of the charged misconduct.

EEOC said, “The image which emerges from considering the totality of the record is that there were conflicts and tensions in the workplace that left Complainant feeling aggrieved. However, the statutes under the Commission’s jurisdiction do not protect an employee against all adverse treatment … Discrimination statutes prohibit only harassing behavior that is directed at an employee because of their protected bases. Here, the preponderance of the evidence does not establish that any of the disputed actions were motivated in any way by discriminatory.”  Kandi M. v. SSS, EEOC Appeal No. 2021002424 (Apr. 18, 2022)

Want to know more about Other Harassment? Join FELTG for the Federal Workplace 2022 virtual event the last week of August for a session on that very topic. [email protected]

Affirmative Defenses: This One is for the Self-proclaimed MSPB Nerds 

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By Deborah Hopkins, July 25, 2022

Did you happen to catch the latest precedent-altering MSPB decision related to affirmative defenses? This one’s a little weedy, but interesting nonetheless, especially to MSPB nerds like myself.

The appellant, a custodial laborer for the USPS, was removed on a charge of improper conduct with specifications including:

  • Telling a coworker that if his [the appellant’s] vehicle was towed from the agency parking lot again, he “would come into work and end up shooting someone out of revenge and anger.”
  • Telling the same coworker that he was having law enforcement follow her because of a verbal dispute the two had a year earlier and that the “only reason [he] didn’t have anything ‘bad’ happen to her was because she has children.”
  • Telling the same coworker, the following day, he was having law enforcement follow and harass a supervisor’s son in retaliation for his vehicle being towed from the agency parking lot and that he would make sure that the supervisor’s son was “booked” for “Driving Under the Influence … and other traffic violations.”

The appellant challenged his removal. In addition to claiming he did not engage in the activity leading to the charges, he also raised an affirmative defense of reprisal for prior protected activity – he had filed an MSPB appeal over an “emergency suspension” he received after the aforementioned misconduct occurred. (If you don’t know what an affirmative defense is, please join us for MSPB Law Week September 12-16 for all you need to know.)

The Administrative Judge (AJ) upheld the removal. However, his decision did not reference the affirmative defense, as that had not come up in any prehearing conference. On petition for review to the Board, the appellant challenged his removal, but did not challenge the fact that the AJ never addressed the affirmative defense.

You with me so far?

Before this case came out, precedential MSPB caselaw required the Board to remand cases for consideration of an appellant’s affirmative defense if the AJ failed to comply with certain procedural requirements. Wynn v. USPS, 2010 MSPB 214. The Board overturned Wynn and other related cases, establishing new criteria for the Board to consider in determining whether an AJ erred in not addressing an appellant’s affirmative defense at the hearing stage. As MSPB’s case report said in its summary [PDF], a potential remand hinges on the “ultimate question of whether an appellant demonstrated his intent to continue pursuing his affirmative defense, and whether he conveyed that intent after filing the initial appeal.”

Below is the non-exhaustive list of factors the Board will consider in determining whether a remand is appropriate:

(1) the thoroughness and clarity with which the appellant raised an affirmative defense;

(2) the degree to which the appellant continued to pursue the affirmative defense in the proceedings below after initially raising it;

(3) whether the appellant objected to a summary of the issues to be decided that failed to include the potential affirmative defense when specifically afforded an opportunity to object and the consequences of the failure were made clear;

(4) whether the appellant raised the affirmative defense or the administrative judge’s processing of the affirmative defense claim in the petition for review;

(5)  whether the appellant was represented during the course of the appeal before the administrative judge and on petition for review, and if not, the level of knowledge of Board proceedings possessed by the appellant; and

(6)  the likelihood that the presumptive abandonment of the affirmative defense was the product of confusion, or misleading or incorrect information provided by the agency or the Board.

Thurman v. USPS, 2022 MSPB 21 (Jul. 12, 2022).

In this case, the Board applied the above factors and determined that the appellant abandoned his affirmative defense, thus there was no basis for remand. As a result, the Board upheld the removal. We’ll discuss this one and others during September’s MSPB Law Week. [email protected]

She/Her/Hers, He/Him/His, They/Them/Theirs: Pronouns in 2022

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By Deborah Hopkins, July 18, 2022

This article reflects current EEO law. Executive Order 14168 (Jan. 20, 2025)  limits the use of pronouns in the Federal workplace to he/she.

There are many polarizing topics (abortion, gun control, COVID-19 vaccines, political affiliation) in this country. We’re going to address another topic that generates feelings almost as strongly in certain circles: pronoun use and gender identity.

Last month, the EEOC introduced a gender marker option X for non-binary individuals who wish to file complaints. The State Department allows gender X on passports and travel documents, and some agencies are considering requiring all employees to identify their preferred pronouns in their email signatures.

Pronouns are an important piece of the gender identity equation, including within the context of the workplace. 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.

As more employees share their pronouns in email signatures, on social media, and in participant lists on Zoom sessions, it’s worth a review of the law on this topic.

Pronouns fall under the sex discrimination umbrella of Title VII workplace protections, within the sexual orientation and gender identity (SOGI) category, and violations of pronoun or name use could result in illegal discrimination or harassment. Complainant v. USPS, EEOC Appeal No. 0120122376 (February 19, 2013), request for reconsideration denied, EEOC Request No. 0520130241 (Jan.10, 2014). EEOC recently addressed a specific question in a Q & A document:

Q: Could use of pronouns or names that are inconsistent with an individual’s gender identity be considered harassment?

A: Yes, in certain circumstances. Unlawful harassment includes unwelcome conduct that is based on gender identity. To be unlawful, the conduct must be severe or pervasive when considered together with all other unwelcome conduct based on the individual’s sex including gender identity, thereby creating a work environment that a reasonable person would consider intimidating, hostile, or offensive. In its decision in Lusardi v. Dep’t of the Army [EEOC Appeal No. 0120133395 (Apr. 1, 2015)], the Commission explained that although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment. [bold added]. EEOC’s Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity, Q. 11. [bold added]

While intentional misuse can violate the law, accidental misuse of a transgender employee’s preferred name and pronouns does not generally violate Title VII. EEOC’s Sexual Orientation and Gender Identity (SOGI) Discrimination. Take, for example, Colleen M. v. USDA, EEOC Appeal No. 120130552 (May 25, 2016). In this case, the supervisor referred to the complainant, a trans female, as “Eric” even though the complainant no longer used that name.

There was no evidence the supervisor used that name intentionally, and “when it was brought to [the supervisor’s] attention that he made an error, he went to the union and explained to them that there was no malicious intent, and he apologized to Complainant.” This one instance followed by a prompt apology, did not state a claim.

A number of cases can help determine the point when pronoun misuse becomes severe or pervasive and creates a hostile environment. [email protected]

Post-Santos: Timing, Precedents, Retroactivity in Performance Cases

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By Deborah Hopkins, July 18, 2022

Most Federal employment law practitioners remember the day last year when the Federal Circuit issued Santos v. NASA. It set a new requirement for agencies to provide substantial evidence of unacceptable performance before implementing a performance improvement plan (PIP).

One of the questions that had lingered for more than a year was how the new MSPB would interpret and apply Santos to the performance-based removals and demotions in its PFR backlog. Would the ruling be retroactive or only apply to performance-based removals after March 11, 2021? Would MSPB reject Santos or try to find a way around it?

Well, because we have a functional MSPB, we now have an answer to those questions, and along with a new framework for agencies to follow in implementing removals or demotions under Chapter 43. Let’s look at the language of the case:

To defend an action under chapter 43, the agency must prove by substantial evidence that:

  • OPM approved its performance appraisal system and any significant changes thereto;
  • the agency communicated to the appellant the performance standards and critical elements of her position;
  • the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1);
  • the appellant’s performance during the appraisal period was unacceptable in one or more critical elements;
  • the agency warned the appellant of the inadequacies in her performance during the appraisal period and gave her an adequate opportunity to demonstrate acceptable performance; and
  • after an adequate improvement period, the appellant’s performance remained unacceptable in at least one critical element.

The Federal Circuit’s new precedent in Santos applies to all pending cases, regardless of when the events at issue took place.

Lee v. VA, 2022 MSPB 11 (May 12, 2022). [bold added]

The new element here is number 4, proof that the appellant’s performance at any point during the appraisal period (but before the PIP) was unacceptable. While most agencies pre-Santos likely did not make such information part of their removal cases, I imagine (or do I just hope?) that most agencies will be able to provide this information on remand. One of FELTG’s best practices has always been for agencies to keep documentation of the reasons why the supervisor implemented the PIP, even if that information wasn’t given to the employee. Anecdotally, I can tell you that most of the supervisors in my training classes have such documentation before they move to implement a PIP.

What does a remand look like in these cases? In Lee, MSPB ordered that “[o]n remand, the administrative judge shall accept evidence and argument on whether the agency proved by substantial evidence that the appellant’s pre-PIP performance was unacceptable. The administrative judge shall hold a supplemental hearing if appropriate.”

Some of you might be wondering why this VA case discusses use of a PIP. Under the 2017 VA Accountability and Whistleblower Protection Act, a PIP isn’t required for the VA to remove an employee for unacceptable performance. That’s because the events in this case occurred before the implementation of the new VA law, and the MSPB agrees with the Federal Circuit “because it is based on performance that occurred several years before the Act went into effect. Accordingly, the appellant’s removal must be adjudicated under chapter 43 on remand.”

One case has provided us with a couple of very important answers to long-held questions. We at FELTG anxiously await the 3,300 remaining decisions yet to be issued. [email protected]

Don’t Ignore the Reasonable Accommodation Framework: Basic Mistakes Can Cost Dearly

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By Deborah Hopkins, June 27, 2022

Updated July 10, 2025.

There are reports in the media about a new facial hair/shaving requirement for members of the military, and how this requirement will impact individuals with certain skin conditions. Did you know that few years ago the EEOC issued a decision on a DOD civilian-side case with very similar facts? See below for the original article.

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The reasonable accommodation process is an entitlement that every Federal employee has a right to pursue, regardless of the job. A recent EEO case, which originated back in 2010, caught my attention.

The case involved 10 complainants who all suffered from a medical condition called pseudofolliculitis barbae (PFB). According to the case, PFB is a chronic bacterial skin disorder that’s caused by shaving facial hair. PFB causes pain, skin irritation, pustules, rashes, sores, bleeding, scarring, and infection. Medically, PFB requires abstinence from being clean-shaven, and predominantly affects African American males.

The complainants worked as police officers, within the Pentagon Force Protection Agency. PFPA police officers are required to wear protective clothing and sometimes use personal protective equipment (PPE), as the job includes defending themselves and others against possible exposure to explosives, chemicals, or other weapons of mass destruction.

In 2010, the agency issued a new regulation that impacted police officers:

Supervisors shall ensure that all emergency response personnel are able to safely wear the Level C [Chemical-Biological-Radiological-Nuclear (CBRN)] PPE Ensemble at any time: facial hair that comes between the sealing surface of the face piece and the face or that interferes with the valve function is prohibited. Emergency response personnel who have a condition that interferes with the face-to-face piece seal or valve function shall not be permitted to wear the Level C CBRN PPE Ensemble. [bold added]

Practically speaking, this new regulation required PFPA Police Officers to be clean shaven because the CBRN ensemble would not seal properly if facial hair was present. The complainants, who up until that point had been permitted to have facial hair a quarter inch in length to accommodate their PFB, were now threatened with reassignment or removal if they did not shave their facial hair. They separately filed EEO complaints, alleging discrimination on the bases of race (African American), color (Black), and disability (PFB).

After a complicated procedural history including EEOC ordering supplemental investigations into the qualification standards for the jobs (which included the need for PPE), the EEOC found the standard on facial hair was appropriate because it was job-related and consistent with business necessity to have PPE that sealed properly.

However, the EEOC also found that the agency failed to meet its requirements to consider effective accommodations, namely alternative PPE that would work properly even in the presence of facial hair, because the complainants had all “passed their annual mask fit tests, and there was no evidence that they were unable to perform the essential functions of their position with the waiver or that any incident occurred where they were in danger or risked danger to others due to a respirator mask failure in an emergency situation.”

In this request for reconsideration, the EEOC held to its decision in the original appeal:

In sum, the Commission found the Agency failed to meet its burden of proving that there was no reasonable accommodation that would enable Complainants to meet the existing standard or an alternative approach that would still allow the PFPA Officers to perform the essential functions of their position. The decision concluded the Agency’s imposition of a blanket policy requiring all PFPA Officers to be clean-shaven regardless of their medical condition violated the Rehabilitation Act.

Cleveland C. et al. v. DOD, EEOC Request No. 2020003894 et al. (Apr. 4, 2022).

Now 12 years later, we finally have an outcome. The agency missed one of the basic pieces of the framework: Consider alternative accommodations that will still allow employees to perform essential functions within their medical restrictions. I can’t help but wonder what the damages will amount to in this case, given that 10 complainants were impacted for over a dozen years.

As employees are returning to the physical office and different workplace standards are being implemented in this post-pandemic world, agencies should remember that every reasonable accommodation request should be given an individualized assessment. [email protected]

Related training: