Biggest MSPB Decision in Over a Decade: The Comparator Framework for 2022 and Beyond

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By Deborah Hopkins, June 21, 2022

We’ve had a quorum for more than three months and a full front office at the MSPB for about three weeks. And now, thanks to what might be the most significant case issued in over a decade, we have a clear, specific, and reasoned answer about who counts as a comparator employee in an adverse action under Douglas factor 6.

Why is this such a big case? In its first three decades when assessing appropriate comparators, the Board required there to be a close similarity in offenses, and generally that comparators worked in the same unit, and worked for the same supervisors. Anything further out was too far removed to be reasonable for the agency to consider. See Jackson v. Army, 99 MSPR 604, ¶ 7 (2005); Fearon v. Labor, 99 MSPR 428, ¶ 11 (2005); Rasmussen v. USDA, 44 M.S.P.R. 185, 191-92 (1990); Archuleta v. USAF, 16 MSPR 404, 407 (1983).

Those of you in the business in 2010 probably recall when the Board changed the comparator framework. It issued what we at FELTG started referring to as the Terrible Trilogy:

  • Woebcke v. DHS, 2010 MSPB 85
  • Lewis v. VA, 2010 MSPB 98
  • Villada v. USPS, 2010 MSPB 232

In case you weren’t around back then, or you’ve forgotten since it was a long time ago, we called those cases The Terrible Trilogy because they expanded the comparator analysis to include nearly anyone in the agency who engaged in broadly similar misconduct to the appellant.

This created a huge burden for agencies, particularly the large agencies, to determine which employees had been disciplined for misconduct and then to apply a consistent penalty to all employees who engaged in somewhat similar conduct, regardless of their location, their job duties, or their supervisors. It also caused potential problems for agencies when employees engaged in specific acts of misconduct but weren’t disciplined at all, which is a too-common occurrence in the Federal government.

At FELTG, we are all about fairness of penalty. However, we felt that this broad requirement was cumbersome and unnecessary to fulfill the intent of the Douglas factors. And, according to the new MSPB in this precedent-setting 2022 case, under the Terrible Trilogy standard “the universe for potential comparators was seemingly limitless” and broader than Douglas requires. Singh v. USPS, 2022 MSPB 15 (May 31, 2022).

The Board also said of the Trilogy framework: “[I]n some cases the consistency of the penalty has become not only more important than any of the other Douglas factors, it has become the sole outcome determinative factor. We hereby reiterate that the consistency of the penalty is just one of many relevant factors to be considered in determining an appropriate penalty.”

Who is a comparator employee today under Douglas factor 6, consistency of penalty?

  • Employee in the same work unit,
  • With the same supervisor,
  • Who engaged in the same or similar misconduct as the appellant.

In most cases, employees from another work unit or supervisory chain will not be proper comparators. There is an exception when, in certain unique circumstances, an employee from another work unit or supervisory chain might be a comparator for penalty purposes – but only if there is an “unusually close connection” in the type of misconduct. And even still, comparator employees cover just one of the 12 Douglas factors.

A few other notable words from the Board in Singh: “In assessing an agency’s penalty determination, the relevant inquiry is whether the agency knowingly and unjustifiably treated employees differently…We hereby reiterate that the consistency of the penalty is just one of many relevant factors to be considered in determining an appropriate penalty.” [bold added]

Therefore, the Terrible Trilogy and their related cases are overruled, and the question that has been lingering for over half a decade (What will be the fate of the Trilogy under a new Board?) finally has an answer. We’ll be discussing this case, plus others, in much more detail on July 20 during the virtual class Back on Board: Keeping Up with the New MSPB. [email protected].

Some of These Non-precedential Cases Seem Awfully Precedential to Me

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By Deborah Hopkins, June 13, 2022

The MSPB is operating on all levels once again, now that the third and final nominee, Cathy Harris, was sworn in at the beginning of the month. There have, as of this writing, only been 15 precedential decisions issued by the new Board, but we’ve seen dozens of non-precedential (NP) decisions in the past three months.

According to MSPB:

“A non-precedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite non-precedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law.” See 5 C.F.R. § 1201.117(c).

Despite their NP status, I have found some new lessons in these decisions. One such case that seems consequential to me is Purifoy v. VA, CH-0752-14-0185-M-1 (May 16, 2022)(NP). Take a look at this procedural history:

  • Employee was fired for AWOL (October 2013)
  • AJ mitigated the removal to a 40-day suspension (November 2014)
  • On PFR, the MSPB reinstated the removal (June 2015)
  • On appeal, the Federal Circuit remanded the case back to the MSPB for an independent Douglas analysis (October 2016)
  • Remand goes in the pile that would eventually become a 3,600+-case backlog, and eventually MSPB’s O & O reinstated the removal (May 2022)

If the second to last bullet point made you pause, you aren’t the only one. Ever since the MSPB started operating in 1979, the discipline process has worked like this:

  1. The agency drafts the charge and selects the penalty.
  2. The Board reviews the agency’s penalty determination for reasonableness.

I can’t recall a time when the Federal Circuit ordered the Board to do its own penalty assessment. (That’s not to say it hasn’t happened – but if it has, I don’t recall. And this is certainly a first for THIS Board.) As we have taught in MSPB Law Week for 20-plus years, the Board must give due weight to the agency’s discretion in exercising the managerial function of maintaining employee discipline and efficiency. The Board’s function is not to displace management’s responsibility but to assure that managerial judgment has been properly exercised within the tolerable limits of reasonableness.

So here we are. A bit more on the facts of this case. The employee, Lamonte Purifoy, was employed by DVA as a WG-2 Housekeeping Aid. He was jailed for six months due to drug use, and the VA fired him based on two charges:

  1. Two days of AWOL
  2. Six subsequent months of AWOL while in jail

On appeal, the AJ held that only 38 days of Charge 2 warranted AWOL. As the severity of the Charge 2 was reduced and because the AJ believed the employee showed a potential for rehabilitation, the AJ mitigated the removal to a 40-day suspension. On PFR the MSPB reversed the AJ’s mitigation and reinstated the removal, as it found the appellant did not demonstrate a high degree of rehabilitation potential.

Upon its review of the case the Federal Circuit decided that the Board members erred by not evaluating Douglas factor 12: “The adequacy and effectiveness of alternative sanctions to deter such conduct in the future,” although the AJ had done so, thus the basis of the remand.

In its assessment on remand, the Board looked at the Proposing Official’s testimony which said that he would object to the appellant returning to the workplace because of the negative precedent such an action would set. In addition, the Board was compelled by the Deciding Official’s testimony about deterring similar misconduct by other employees, and the message that imposing a lesser penalty would send. Therefore, this factor supported reinstating the removal penalty.

I talked with Bill Wiley, one of FELTG’s Founding Fathers, about this case and he had some insight about the Board’s decision and its assessment of Douglas factor 12: “When defending a removal penalty, be sure to state what harm would occur if the employee was returned to or remained in the workplace. Often, it can be said truthfully that anything less than removal would send a negative message to other employees. If the employee was disruptive in the workplace before removal, it would be reasonable to predict he would be disruptive if he was reinstated or retained.”

The Board also weighed in on the other Douglas factors. So, while Purifoy is an NP case, it gives us factor-by-factor information on how this new Board views the Douglas assessment. And if you understand the Board’s reasoning in Purifoy, you will be able to better defend the agency’s penalty selection for years into the future.

For more on this and other lessons from the Board, join FELTG for the virtual training Back on Board: Keeping Up with the New MSPB, July 20. [email protected]

How to Lose a Cook Case – Excessive Absence Removal Requirements Under the New MSPB

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By Deborah Hopkins, May 31, 2022

When an employee is too ill to come to work on a regular basis, it puts the agency in a difficult position: wanting to work with the employee and grant leave in hopes they will eventually recover, but also needing someone to complete the job tasks on a regular basis. In some cases, the amount of leave the agency grants becomes problematic and the agency needs the employee to return to duty.

Generally, an agency cannot take an adverse action for approved absences – and that makes sense. After all, the agency grants the leave, or else the employee has an entitlement to the leave. However, an agency may remove an employee for excessive absence if the agency proves the Cook criteria, as identified in Cook v. Army, 18 M.S.P.R. 610 (1984):

  1. The employee was absent for compelling reasons beyond his control;
  2. The absences continued beyond a reasonable time and the agency warned the employee that an adverse action would be taken unless the employee became available for duty on a regular basis; and
  3. The position needed to be filled by an employee available for duty on a regular basis.

A recent MSPB decision, Robinette v. Army, AT-0752-16-0633-I-1 (May 11, 2022)(NP), reminds us the Cook criteria are requirements, not suggestions. The decision reinforces that the Board cannot uphold a removal if the agency does not comply with all three elements in the Cook criteria.

In Robinette, the agency issued the appellant a Notice of Leave Restriction on Feb. 17, 2015, which informed him that his chronic, unscheduled absences were considered excessive and negatively affected the agency’s ability to accomplish its mission.

On May 18, 2016, the agency issued a Notice of Proposed Removal for “excessive absenteeism,” which specified that from Feb. 21, 2015, through April 16, 2016, he was absent 939.3 hours out of a total of 2103.7 available duty hours (almost 45%). The agency removed the employee on June 24, 2016, and he filed an appeal to the MSPB.

In the initial decision, the administrative judge (AJ) found the agency’s action was properly predicated upon approved leave, including annual leave, sick leave, and Leave Without Pay, but that the Leave Restriction Letter did not meet the second element of the Cook criteria; it did not inform the employee his approved absences could lead to removal if he did not become available on a regular basis. So, the AJ reversed the removal.

On Petition for Review, the agency argued that it had suspended the employee in November 2014 and April 2015 for “failure to follow proper leave procedures” and that the statement in the decision letters “[y]ou are cautioned [that] any repetition of this or similar offenses may result in more severe disciplinary action against you” met element 2 of the Cook criteria. Because neither decision letter was part of the record, the Board refused to consider anything except the February 2015 Leave Restriction Letter, which the Board also found did not meet the second Cook requirement.

Excessive absence removals are highly technical. Reading this case reminded me of a VA case from a few years ago where the agency’s removal was reversed because the warning letter told the employee that if he did not return to work, he would be disciplined, but it did not say that continued absence on approved leave would warrant his removal. Miles v. DVA, CH-0752-14-0374-I-2 (May 17, 2016)(ID).

As we teach in all our classes, words matter. For more on this and other leave-related challenges, join us virtually for Absence, Leave Abuse & Medical Issues Week, June 13-17. [email protected]

That Time a Supervisor Was Harassed by His Employee for Being Gay – and the Agency Was Liable

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By Deborah Hopkins, May 16, 2022

Every now and then, a supervisor in one of my classes will ask if they have a right to file an EEO complaint alleging harassment by a subordinate employee. I’ll tell them yes, they do have that right. I also tell them handling the harassment as a conduct issue is a much quicker process that yields rapid results and allows the supervisor to avoid the EEO complaint process entirely, if they prefer not to file.

How so, you might wonder?

Well, a supervisor who believes a subordinate is harassing him must simply set a rule of conduct (for example, do not refer to me as a “f*g” or “f*ggot”), and then discipline the employee if she violates the rule. [Note: We are using asterisks so that your agency’s firewall won’t block you from receiving this message. We recommend NOT using asterisks in establishing rules of conduct, reports of investigation, disciplinary letters, or other official agency documents.]

A few days ago, I came across a fairly recent EEO decision where a supervisory health system specialist at an IHS medical facility alleged harassment based on sexual orientation. The harassment was coming from a subordinate. The agency FAD acknowledged unwelcome conduct but said the conduct was not sufficiently severe or pervasive, and the complainant failed to take advantage of a key corrective opportunity provided by the agency.

The complainant was the employee’s supervisor and he did not discipline the employee for the conduct. The complainant appealed the FAD to the EEOC.

The EEOC reversed the FAD and found the agency liable for hostile work environment harassment.

Here are relevant details from the case:

  • Over a 21-month period, the employee engaged in at least nine incidents of harassment based on the complainant’s sexual orientation, including multiple uses of the words “f*g” and “f*ggot.”
  • Seven of these incidents included comments made to other agency staff or directly to, or within earshot of, at least four agency management officials. Examples of the employee’s comments included:
    • “If they want to pay me for fighting with a f*g all day, then I guess that is what I will do.”
    • “I hate [Complainant], that f*cking f*ggot!’”
    • “I have the ear of the Area Director and I am going to report your f*ggot *ss and everyone in this clinic for everything that is going on in this clinic.”
  • The complainant’s immediate supervisor, the CEO, informed him that the employee had been making derogatory comments about the complainant’s sexual orientation directly to the CEO. When the complainant questioned whether the CEO had taken corrective action, the CEO said that she had admonished the employee, and referred the complainant to the EEO Complaint process for next steps. The CEO admitted she did not discipline the employee who engaged in the harassing conduct because “she did not feel that it would be appropriate to interject herself …” into the situation.
  • The complainant said that he made multiple attempts to discipline the employee, but that the discipline was returned to him. The agency did not present a rebuttal to this statement.

Taking these facts into consideration, the Commission found a hostile work environment based on sexual orientation. It attributed liability to the agency because management officials did not take prompt and effective action once they became aware of the employee’s conduct. The Commission said it was improper for the agency to place the onus on the complainant to discipline the employee or file an EEO complaint, and further stated:

We remind the Agency that the EEO process is not a substitute for the Agency’s internal process. Moreover, we find that the inadequate responses from Complainant’s chain of command likely emboldened [the employee] to continue harassing Complainant, diminished his authority as her supervisor, and heightened the severity of the alleged incidents. Debbra R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120161305 (Jul. 26, 2016) (finding that when harassment is repeated, a supervisor’s failure to respond to instances of alleged harassment heightens the severity of the alleged act). As such, we find that [the employee]’s actions unreasonably interfered with Complainant’s work environment and management officials failed to take prompt and effective action.

Foster B. v. IHS, EEOC Appeal No. 2019005682 (Apr. 12, 2021).

The case didn’t discuss anything about the returned discipline the complainant alleged, and I can’t help but wonder if that was a deciding factor in the Commission’s decision. One thing is for sure, a lesson learned from this case: Any agency management official who has knowledge of harassing conduct has an obligation to take prompt, effective corrective action – even if the harasser is not in that person’s chain of command. A failure to act can cause agency liability, and potentially immeasurable harm to the victim.

To learn about making the Federal workplace a welcome and inclusive environment, join us on June 9 for Promoting Diversity, Enforcing Protections for LGBTQ Employees. [email protected]

 

Explaining the Nexus Requirement in Misconduct Cases

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By Deborah Hopkins, May 16, 2022

One of the considerable ways in which Federal employment is different from at-will employment, is that the Civil Service Reform Act allows a Federal agency to fire a career employee only for cause (with a few exceptions we won’t get into today).

An adverse action may be brought “only for such cause as will promote the efficiency of the service.” 5 USC 7513(a); 5 CFR 752.403. This is where we get the nexus requirement. A nexus is defined as a connection or a link.

The specific charges, no matter how they’re drafted, are notice concepts that relate to due process, but efficiency of the service is the legal criteria. The agency needs to prove two things in an adverse action:

  1. The reason, charge, and specified conduct (by the employee) occurred, and
  2. The action (taken by the agency) promotes the efficiency of the service.

Miller v. Dept. of Interior, 119 MSPR 331 (2013)

In law, as well as logic, there must be a clear and direct relationship demonstrated between the articulated grounds for an adverse personnel action and either the employee’s ability to accomplish his/her/their duties satisfactorily or some other legitimate government interest promoting the “efficiency of the service.” Doe v. Hampton, 566 F.2d 265 (D.C. Cir. 1977).

It’s dangerous for agencies to assume the nexus is clear. In most cases, even if an employee engages in egregious criminal conduct, the agency should not rely merely on speculation or an unfounded assertion that the misconduct impacts the efficiency of the service; the agency has the burden of establishing the nexus by specific evidence. Douglas v. Veterans Administration, 5 MSPB 313, 334 (1981); Allen v. U.S. Postal Service, 2 MSPB 582, 584 (1980).

If the misconduct occurs on duty, or using agency resources, it is much easier for the agency to show nexus. MSPB has said it is well-settled that there is a sufficient nexus between an employee’s misconduct and the efficiency of the service when … the conduct occurred at work. Hornsby v. FHFA, DC-0752-15-0576-I-2 (Apr. 28, 2022)(NP), citing Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987); Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006). But what if the misconduct occurs off-duty?

The MSPB generally recognizes three independent means by which an agency may show a nexus linking an employee’s off-duty misconduct with the efficiency of the service:

  • a rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct;
  • a showing by preponderant evidence that the misconduct affects the employee’s or his co-workers’ job performance, or management’s trust and confidence in the employee’s job performance; and
  • a showing by preponderant evidence that the misconduct interfered with or adversely affected the agency’s mission.

See, e.g., Johnson v. Department of Health and Human Services, 22 M.S.P.R. 521, 526 (1984); Merritt, 6 M.S.P.R. at 590-606; Gallagher v. U.S. Postal Service, 6 M.S.P.R. 572, 576-77 (1981).

Here’s an example where the agency properly established nexus: The agency charged the appellant with conduct unbecoming and removed him after it learned he had consensual romantic relationships with three subordinates. Even though no agency policy prevented such relationships, the Board upheld the removal because the agency showed the relationships affected his supervisory role, his interaction with his subordinates was negatively affected, and the appellant’s supervisor lost confidence in the appellant’s judgment. Robacker v. USDA, Fed. Cir. No. 2009-3289 (July 9, 2010)(NP).

And here’s an example when the agency did not properly establish nexus: An FBI agent filmed sexual encounters of himself and another agent without her knowledge. The FBI removed the appellant and using the concept of “clearly dishonest” behavior to establish nexus between the misconduct and the efficiency of the service. The Federal Circuit found the agency’s nexus argument to be too vague. Doe v. DoJ, 565 F.3d 1375 (Fed. Cir. 2009).

Nexus is too important to skip over, so join FELTG and instructor Bob Woods on June 7 for the 60-minute webinar Got Nexus? Accountability for Off-duty Conduct. [email protected]

The New Board Offers a Lesson on Conduct Unbecoming

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By Deborah Hopkins, May 9, 2022

As new cases start coming out of the MSPB after its 5-year wait for a quorum, cases containing lessons with broad applicability to Federal agencies are still few and far between. But a recent decision, involving an appellant’s removal based on conduct unbecoming a Federal manager, caught my attention. The agency charged the employee with 18 specifications. After a 5-day hearing, the Administrative Judge (AJ) found that the agency failed to prove any of the specifications supporting the charge, and ordered the agency to reinstate the employee. The agency filed a PFR.

In its decision, the Board reiterated that a charge of conduct unbecoming has no specific elements of proof; the agency establishes the charge by proving the appellant committed the acts alleged under this broad label. Then it turned its attention to the specifications, a number of which the Board said did evidence conduct unbecoming, and several that did not. Let’s take a look.

The below specifications are conduct unbecoming.

  • During a meeting with another agency employee, the appellant held up a copy of an email the employee had sent him, which was seeking clarification about pay raises, and the appellant said, “[L]ooking at this email … I found it [expletive] offensive.” (FELTG’s best guess is that the expletive started with the letter “f” and rhymes with “trucking,” which we confirmed after reading the initial decision. And with that please, new MSPB, would you consider ending the practice of sanitizing expletives in your opinions? Let the words speak for themselves.)
  • In a meeting with a fellow manager about outsourcing information technology services, the appellant told the manager about a specific employee who had filed an EEO complaint in order to illustrate that one advantage of outsourcing is that the agency does not have to deal with personnel matters such as EEO complaints.
  • During a meeting with several colleagues, the appellant placed his hand over a Project Director’s mouth to prevent him from making further comments.
  • The appellant intimidated two attorneys who wrote a draft memo for the Director and told them that issuing the memo would be a “career ender.”
  • After he received a Level 3 performance rating, the appellant asked the HR Director to negotiate with the agency’s Acting Director on his behalf for a higher rating so that he would receive a bonus, “thus placing the HR Director in the untenable position of either refusing his supervisor’s request or negotiating with his former second-level supervisor for a better performance rating for his supervisor.”

These specifications are not conduct unbecoming.

  • During a meeting with the EEO Director, the HR Director, the HR Deputy Director, and agency attorneys about anonymous EEO complaints, the appellant commented that employees should not be allowed to make anonymous EEO complaints and that they should have more “skin in the game.”
  • The appellant told the agency’s EEO and Diversity Director and an EEO Counselor that he did not believe any of the complaints about the HR Deputy Director, and that if there were any more complaints about her there would be serious consequences. (While the Board found this behavior troubling, the agency’s lack of discipline of the employee when he made the comment several years earlier meant they failed to prove this specification, because the agency “merely [took] “the remedial step of advising the appellant of the legal and policy importance of allowing employees to file anonymous internal complaints.)
  • The appellant stated in front of a group of employees that a fellow senior-level employee should be put on a PIP.
  • The appellant told a fellow manager that the allegations in her grievance against the agency’s CIO would be reflected in the CIO’s performance evaluation.
  • The appellant “became agitated” when the Acting Director questioned him about a workplace matter.

Not all 18 specifications are listed; a number of specifications the AJ found the agency did not prove were left undisturbed because of the AJ’s credibility assessments of the evidence at hearing. Hornsby v. FHFA, DC-0752-15-0576-I-2 (Apr. 28, 2022)(NP).

Quite a lot in a non-precedential case, wouldn’t you say? We’ll be discussing a lot more takeaways at the July 20 virtual event Back on Board: Keeping Up with the New MSPB. [email protected]

Three Lessons Learned from the New MSPB’s Decisions

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By Deborah Hopkins, April 11, 2022

My morning routine has changed significantly in the last few weeks. Now, along with my coffee, instead of reading the news, I’ve been eagerly checking the MSPB website for new cases (a decision on a PFR is officially called Opinion & Order, or O & O) issued by the Board. They’ve issued a few dozen decisions so far. Ann Boehm will touch on some of these cases in her Federal Employment Law Update: Significant Cases and Developments session during Emerging Issues in Federal Employment Law later this month.

Until then, here are three takeaways from our first read of the cases.

1 – The Board is keeping non-precedential (NP) decisions, though not all are lengthy. FELTG has long advocated that the Board do away with NP decisions, since they don’t add anything significant to the body of MSPB case law (5 CFR 1201.117), but alas, we don’t always get what we wish for. In fact, in our recent interview with Acting Chair/Vice Chair Raymond Limon, he informed us that NP decisions were here to stay.

That said, most of the NP cases the Board has issued are only a page or two. And of the longer ones that contain a more detailed discussion of the merits, we’ve seen some interesting things, including:

  • This Board’s interpretation of how many specifications must be proven to uphold a charge,
  • What it plans to do with Lucia challenges,
  • Appropriate (and inappropriate) methods of notifying a probationer of their separation, and
  • What types of evidence in response to alleged whistleblower reprisal actually rise to the level of “clear and convincing.”

2 – Whistleblowers are a priority. Speaking of whistleblowers, we estimate that somewhere between 700-800 of the 3,600+ petitions for review in the backlog contain allegations of whistleblower reprisal, and the Board has already issued decisions on several of these cases. Both members have spoken publicly about how important it is to protect whistleblowers from unlawful retaliation, so it’s no surprise that these cases are already coming out.

3 – Back pay is already adding up. A lack of quorum for half a decade did no favors to anyone, and the back pay for employees who were wrongfully removed or demoted is going to cost agencies (and taxpayers) a lot of money. Two of the new cases have ordered corrective action going back over a dozen years. Add interest and attorney fees to back pay and the cost is easily over a million dollars (or more) in these cases. In addition, while we anticipate agency actions will be upheld in a significant majority of these cases, there are employees who have been wronged who have been waiting years for a Board decision. We’ll never be able to know the true cost of the lack of quorum – but thankfully we have one now.

Is anyone else as excited as we are that we finally have new cases? We’ll keep you posted in this space, and with updated events on our virtual training and webinar training pages – and in our return to the classroom this summer. [email protected]

COVID-related Harassment Should NOT Outlast the Pandemic

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By Deborah Hopkins, April 11, 2022

Last fall, in the first filing of its kind, the EEOC filed a lawsuit against a private sector company for COVID-related harassment. According to EEOC’s press release, “the pharmacy discriminated against a pharmacy technician with asthma who asked to wear a face mask at work as an accommodation of his disability immediately following the COVID-19 outbreak to help protect him from the virus. The employee was harassed because he requested this accommodation and was sent home twice when he asked to wear a mask, and then taunted and humiliated for questioning management’s policy prohibiting masks, leading him to quit…”

Mask mandates are being lifted all around the country, and COVID cases continue to drop. However, your agency needs to be aware that the potential for discrimination, harassment, and reprisal related to COVID is far from over. Your agency’s job is to prevent that from happening in the first place, or to take immediate, effective corrective action if it discovers such mistreatment has occurred.

It’s probable that every theory of discrimination has been implicated since this pandemic began more than two years ago. Here are a few examples of areas where there could be potential liability if the agency or its employees do not respond according to the law:

  • Employee requests telework as an accommodation because he is at high risk for severe symptoms of a COVID infection
  • Employee chooses to wear a mask or to continue to socially distance after mask mandates are lifted because she has underlying medical conditions that rise to the level of a disability
  • Employee reveals to supervisor he could not be vaccinated against COVID-19 for medical reasons, and the supervisor refuses to consider a promotion for that employee
  • Employee reveals to coworkers she could not be vaccinated against COVID-19 for religious reasons, and coworkers begin to ostracize the employee
  • Reprisal or harassment against employees who requested exemptions from the vaccine mandate as an accommodation, including verbal comments, disparate treatment, and more
  • Agency refuses to consider telework as an accommodation for employees who have been teleworking throughout the pandemic, and are now ordered to return to the worksite
  • Supervisor doesn’t allow an employee to return to the physical workplace because the employee has a known disability the supervisor believes makes the employee susceptible to more severe COVID, even though the employee is willing and able to work within their medical restrictions
  • Asian American and Pacific Islander (AAPI) employees are harassed or discriminated against over the origin of the virus
  • Harassment in a virtual or telework environment

There’s a lot to consider as we start to discover what the Federal workplace will look like in the near future. Join FELTG for the 60-minute webinar The Changing Nature of Hostile Work Environment Claims on May 19 and learn how handle these new types of harassment to ensure a safe and productive work environment for your employees.

Or, let us know if you’d like us to present a training session to your agency attorneys, LR/ER specialists, EEO professionals, supervisors or employees. We’re happy to help. [email protected]

MSPB’s FY 2021 Report – the Last of its Kind for a Long Time

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By Deborah Hopkins, March 28, 2022

Last month, the MSPB issued its annual report [PDF] from FY 2021, and just like the reports from the several years preceding, there were ZERO decisions on Petitions for Review, because there were ZERO members on the MSPB.

Well, that’s all changed because as of March 4, 2022, we now have a quorum. That’s right, after 1,882 days without a quorum, the Senate confirmed Vice Chair and Acting Chair Raymond Limon, and Member Tristan Leavitt. As a result, the backlog of 3,600-plus cases is starting to move. That means the FY 2022 report will contain something other than zeroes at the Board level for the first time since FY 2017.

In the years without a quorum, the Board was still operating on the lower levels, and I’ve highlighted some statistics in the 2021 report you might also find interesting:

  • 4,649: The number of appeals received (of those, 1,881 were adverse actions; 173 were performance-based actions; and 453 were Individual Right of Action).
  • 3,082: The number of appeals dismissed
  • 1,567: The number of appeals not dismissed
  • 724: The number of appeals settled (a 46% settlement rate)
  • 843: The number of appeals adjudicated on the merits

Of those appeals that were adjudicated on the merits:

  • AJs upheld agency actions 80 percent of the time
  • AJs overturned agency actions, or ordered corrective action, 16 percent of the time
  • AJs mitigated agency actions 2 percent of the time

Allow us to do the important math for you: Out of 4,649 appeals filed, only 157 of those actions were overturned or mitigated, which equals 3.38 percent. So, agency actions stood as taken in 96.62 percent of cases last year.

The agencies that had the top 5 highest number of appeals, unsurprising given the size of these agencies:

  • Department of Veterans Affairs
  • Department of the Army
  • United States Postal Service
  • Department of the Navy
  • Department of Homeland Security

Because of the continued lack of quorum, MSPB was unable to issue any formal reports to the President and Congress in FY 2021. But according to the report, “MSPB published three editions of its [Issues of Merit] newsletter, which included articles on various topics such as pay equity, recruitment and hiring, telework, online training, disability retirement, performance management, and supportive work environments.” MSPB also published five research briefs which are linked in the report.

With all that’s happening, and more about to happen, it’s a perfect time to register for the webinar Getting Back on Board: An MSPB Case Law Update, planned for April 20, where we’ll be covering the first cases coming out of the brand new MSPB. Finally! [email protected]

Q&A About Performance Demonstration Periods, Otherwise Known as PIPs

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By Deborah J. Hopkins, March 15, 2022

As we eagerly await the first decisions from the newly seated MSPB quorum, we have also just passed the one-year anniversary of the Federal Circuit decision Santos v. NASA, that made us rethink everything we thought we knew about implementing the employee performance demonstration period, what we at FELTG call a DP, or as many of your agencies might call it, the PIP.

Over the past year, we’ve received numerous questions about PIPs. Below are a few questions with our FELTG answers.

Q: A supervisor is noticing a lot of performance issues with an employee. Our agency is in the performance documentation period right now and our performance cycle ends on 8/31. Is the performance rating in September a good time to rate as Unacceptable and announce the PIP, or should it be done before then? 

A: The supervisor should implement a PIP now, and not wait until annual rating time. There’s no requirement that the agency wait until a pre-determined rating time to implement a PIP; as soon as the supervisor can document substantial evidence of the unacceptable performance, then OPM regulations say it’s PIP time.

At any time during the performance appraisal cycle that an employee’s performance is determined to be unacceptable in one or more critical elements, the agency shall notify the employee of the critical element(s) for which performance is unacceptable.

5 CFR § 432.104

Waiting until the end of the appraisal period does nobody any favors, and a Level 1 rating is not required before an agency may implement a PIP. According to Santos, the agency need only document unacceptable performance that caused the supervisor to implement the PIP.

Q: How concrete do performance standards have to be, as well as expectations communicated on a PIP, in order to support any final decision to remove?

A: The agency has to have substantial evidence the employee performed unacceptably before, and during, the PIP, on the critical element in question. The expectations communicated depend on the employee’s job level and type; the higher the grade level, the less objective the standards and expectations need to be. See, e.g., Graham v. Air Force, 46 MSPR 227 (1990).

Q: While Santos sets out the requirement that agencies have substantial evidence of unacceptable performance before implementing a PIP, OPM’s proposed regulations disagree with that assessment. What happens next?

A: Well, a couple of things. First, OPM’s regs were proposed and not final, so we’ll wait to see what the final rule says. Second, the MSPB members will probably have a few things to say about Santos. Until we get their take, we won’t speculate – but we’ll keep you posted as soon as we know anything.

For more on employee performance challenges, join us for the virtual MSPB Law Week March 28-April 1, or check out the upcoming webinar The Roller Coaster Employee: Managing Up-and-Down Performance on May 10, or join us in person in Norfolk for Advanced Employee Relations August 2-4. [email protected]