A Hidden-in-Plain-Sight Management Tool: Reassignment

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By Deborah Hopkins, April 18, 2018

Reassignment is a management tool that often goes under-utilized in the federal civil service. Some people think it only applies to reasonable accommodation cases; others believe that it’s a way to punish bad employees. Bill and I had quite a lively discussion during MSPB Law Week last month (you can join us for the next round, in Denver June 4-8), so I thought I’d use this newsletter as a way to share some questions and answers that came up in class.

Question: What exactly is reassignment?

Answer: Reassignment is a permanent transfer of an employee to another job in the agency, anywhere in the world, to a job at the same grade level.  If you like fancy legal words, here’s the language about reassignment out of 5 CFR 210.102(b)(12): “A change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion.” This may include changes in pay based on locality, and it may include a different job series.

Question: When can a supervisor unilaterally and legally reassign an employee?

Answer: Basically, whenever she wants to – if she has a reason to.

Federal supervisors have authority under 5 USC 7106 to run the government and determine the day-to-day operations of the federal agencies in which they work. This includes hiring people, assigning work, directing employees how and where to work, and reassigning employees. 5 CFR 335.102.

If a supervisor has a legitimate, business-based reason for reassignment, then the supervisor can order the employee, with appropriate notice, to another job in the agency, anywhere in the world. Note: When an agency reassigns an employee outside her commuting area, that employee will generally get reimbursed for moving expenses.

One of the very first cases after the MSPB was founded tells us that the only limitation on a supervisor’s decision to reassign is that the reason is “bona fide and based upon legitimate management considerations in the interest of the service.” Ketterer v. USDA, 2 MSPB 459 (1980). Even better, once it is established that the reassignment was a proper business decision, the MSPB will not review the underlying reasons why management exercised its discretion in directing the reassignment. Id.

Reassignment is not limited to use only after an employee fails a PIP. It can be directed at any time, for any bona fide reason.

Question: So, a supervisor can reassign a really bad employee, or a really good employee?

Answer: You betcha. You can reassign your best employee to another office because you need the best employee you’ve got in that position, or you can reassign your worst employee to another job because she isn’t cutting it in her current place and you think she may do better elsewhere.

Either way, you have a bona fide reason. Pretty cool, huh?

Question: Is reassignment an entitlement?

Answer: No, unless your union contract says so (this is rare), or unless the reassignment is being used as a disability accommodation.

Question: What if the employee doesn’t want to be reassigned?

Answer: Too bad. He has to go, if you tell him to. In fact, removal is warranted for an employee who refuses to accept a directed reassignment. Foundational MSPB case law backs up the stance that removal is not “unreasonably harsh” for a refusal to go where he is ordered. Nalbandian v. DOI, 25 MSPR 691 (1985).

Here’s a bonus, too: to justify a removal, you don’t have to do Douglas factors if you charge Failure to Accept a Directed Reassignment. Instead, you just need to apply the two-prong test from Ketterer, above: (1) Show your bona fide reason for the management-directed reassignment, and (2) Show that removal will promote the efficiency of the service. Your burden in this disciplinary action is a preponderance of the evidence (unless you’re in the VA, in which case it’s a lower burden of substantial evidence).

Question: Can union contracts limit reassignment authority?

Answer: A collective bargaining agreement cannot prohibit management-directed reassignment, but it may dictate how the reassignment is implemented; for example, it may require the agency give the employee 120 days’ notice.

Question: Can an employee challenge a reassignment?

Answer: Yes, he can. Here are the various routes to challenge a management-directed reassignment:

  • Administrative grievance procedure
  • Negotiated grievance procedure, if he’s in the union
  • EEO complaint, if he thinks the reassignment was motivated by his protected class
  • Office of Special Counsel, if he thinks the reassignment was motivated by the fact that he’s a whistleblower
    • MSPB Individual Right of Action appeal, if OSC declines to investigate

Question: What about reassignment as reasonable accommodation?

Answer: Due to space restrictions, let’s tackle that in another article. See elsewhere in this newsletter for the article Reassignment as the Accommodation of Last Resort. [email protected]

Reassignment as the Accommodation of Last Resort

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By Deborah Hopkins, April 18, 2018

Elsewhere in this newsletter, I discussed some of the questions that come up about management-directed reassignment for business-related reasons. We also often get questions about reassignment as reasonable accommodation (RA) for disabilities, so let’s tackle that topic here.

Question: Is reassignment an entitlement?

Answer: Yes, if all other accommodation options have been exhausted. Reassignment is designated as a type of reasonable accommodation under the Americans with Disabilities Act. Under 29 CFR 1630.2, reassignment is a legal obligation if the agency cannot make minor job modifications or otherwise find an accommodation that will allow the employee with a disability to perform the essential functions of her position without causing an undue hardship on agency operations. Reassignment is referred to as the accommodation of last resort, a final opportunity for the individual to retain employment.

Question: What counts as reassignment for RA purposes?

Answer: Reassignment is a non-competitive, permanent transfer of the employee to a vacant, funded job at the same grade level in the agency. The individual must be qualified for that position, both in terms of “on paper” (education, work experience, etc.) and as a practical matter (able to perform the essential functions of the job with or without accommodation). 29 CFR 1630, Appendix. There is no obligation that the agency search for a higher-graded position for reassignment, see Foley v. Transportation, EEOC No. 0120090235 (February 6, 2009), or that the agency should create a position for the employee, see Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997).

Question: Does the employee get to choose which position he prefers?

Answer: If there are multiple reassignment positions for which the employee is qualified, the agency should defer to the employee’s choice of position. We know that the agency gets to choose the accommodation, as long as it’s effective. See Birdie C. v. VA, EEOC No. 0120150115 (February 28, 2017). We know from the case law that if an employee identifies a vacant reassignment position, the agency is required to consider that, see Bowers v. DSS, EEOC No. 0720070012 (March 22, 2010). And when it comes down to two or more vacant positions to which the employee can be reassigned, I just don’t think an agency should want to pick a fight with the EEOC about which job the employee gets.

Question: What if there’s no position available at the employee’s grade?

Answer: The 29 CFR 1630 Appendix addresses this by stating the agency “may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation.”

Question: How many times does the agency have to look for a reassignment position?

Answer: Once is enough, if the search is thorough and reasonable. The key is that you have to be “reasonable.” One good-faith job search should be enough. If the agency has knowledge that a position will soon become vacant, though, the agency should reassign the individual once the job is open. 29 CFR 1614, Appendix. Also, if the employee is aware of a position to which she can be reassigned, and she is qualified, her proposal should be considered.

Question: What if the employee refuses to accept a reassignment?

Answer: If the employee refuses to accept a reassignment, and no other reassignments are available, the employee has ended the agency’s obligation in the RA process and may be removed for medical inability to perform or a similar non-disciplinary charge. See Clemens v. Army, EEOC No. 0320070044 (March 29, 2007).

Question: What if there are no reassignment positions available anywhere in the agency?

Answer: If no positions are available for which the employee is qualified, then the agency is free to remove the employee. See Acosta v. VA, EEOC No. 0320100028 (July 20, 2010).

Hope this answers some questions you may not have even known you had. [email protected]

Animal Kingdom Throwdown: Service Animals vs. Emotional Support Animals

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By Deborah Hopkins, originally published March 14, 2018; updated October 10, 2023

Do you remember the story where an emotional support dog bit a little girl in the face on a Southwest Airlines flight a few years back? Or, how a Spirit Airlines customer flushed her emotional support dwarf hamster down an airport toilet after being told she was not allowed to fly with the rodent? (FWIW, the hamster-bearing passenger claimed a Spirit Airlines employee told her to flush the hamster, but Spirit Airlines has denied this accusation.)

If you didn’t catch those stories, you probably at least saw the headline in 2018 when United Airlines denied boarding to a woman’s emotional support peacock at Newark’s Liberty Airport. United’s statement to the media explained that the peacock “did not meet guidelines for a number of reasons, including its weight and size,” a fact which the would-be passenger had been told three separate times before she got to the airport. Should you ever need a bit of trivia for a cocktail party or a game show, in order to accommodate emotional support animals, the airline requires medical documentation at least 48 hours in advance of the flight, at which time they evaluate unusual animals “on a case by case basis.” While federal guidelines require airlines to permit passengers with disabilities to board with trained service animals or emotional-support animals, airlines may exclude from flights animals that are too large or heavy to accommodate on board, or animals that could cause a significant disruption of service during the flight.

No doubt about it, emotional support animals are becoming more popular in this country, but they are NOT the same as service animals. According to the ADA National Network, a service animal is any dog (or in certain cases, a trained miniature horse) “that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”

Let’s quickly set out some of the differences between service animals and emotional support animals:

Service Animals

Emotional Support Animals
  • Limited under the ADA to dogs (and in some cases, miniature horses)
  • Formally trained to assist people with disabilities
  • Do NOT bite or misbehave
  • May be certified by licensed medical providers
  • Perform physical tasks for disabled individuals with vision, hearing, mobility, and other impairments
  • Tasks may include pulling or pushing a wheelchair, retrieving dropped items, reminding a person to take medication, pressing an elevator button, alerting at the potential onset of seizures, and alerting at the arrival of visitors.
  • Also known as comfort or therapy animals
  • Can be any animal, really; we’ve seen various types of birds and fowl, snakes, monkeys, ponies, rodents, cats, even spiders
  • Do not undergo formal service animal training
  • May bite or misbehave
  • Are not certified by medical providers
  • Provide companionship
  • Help owners by providing emotional support for conditions such as depression, anxiety, PTSD, or mood disorders
  • Assist in relieving stress

 

There is no federal law that requires public organizations or businesses to accommodate emotional support pets, but sometimes people try to take advantage of the service animal stigma by bringing pets into public places and places of employment and hoping people are too afraid to ask if the animal is a trained service animal. It has gotten so bad, in fact, that some state and local laws have made it a crime to try to pass off an emotional support dog or pet as a legally-protected, disability-related service animal.

This topic of emotional support animals, while making the news this year, is not new. In a decision from 2006, the EEOC agreed with the Navy after the Navy denied an employee the use of an emotional support dog in the workplace, because there was no connection between the dog’s presence and the employee’s disability. While the employee was substantially limited in the major life activity of interacting with others, and the dog helped curb her anxiety and stress when she dealt with crowds and strangers, the employee was unable to show that she had to interact with crowds or strangers at work because her job consisted mainly of data-entry tasks. Struthers v. Navy, EEOC No. 07A40043 (June 29, 2006).

In another case from several years ago, an agency allowed an employee’s emotional support bird to stay at the office, as long as the bird was caged and the cage was kept clean. The employee requested to give the bird free range to roam outside the cage because he thought the bird would be unhappy cooped up, but the agency properly denied this request. Mermen v. USPS, EEOC No. 01A13112 (September 25, 2002).

Though there are not a whole lot of legal cases on this topic, we have seen an increasing number of federal employees attempting to bring emotional support animals to the workplace. What does this all mean for you? Here’s what you need to know: the EEOC takes that stance that an emotional support animal may be a required reasonable accommodation for a qualified individual with a disability, even if it is not a trained service dog.  So, whether the animal is a trained service animal or an emotional support animal, your agency has a duty to engage in the interactive process to determine if allowing the animal in the workplace would permit the employee to perform the essential functions of her job without causing an undue hardship.

That’s right: even though public places like restaurants, bars, movie theaters, supermarkets, and hospitals are not legally required to provide access to their customers’ emotional support animals, federal agencies actually do have an obligation to consider options for applicants and employees who request emotional support animals or service animals in the workplace.

Hope this helps clear up some of the questions you might have. [email protected]

The “Reasonable” Aspect of Reasonable Accommodation: What Does Reasonable Really Mean?

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By Deborah Hopkins, March 14, 2018

There’s yet another recent EEO decision that makes me ask the question, “When it comes to providing reasonable accommodation to an individual with a disability, how far does an agency need to go?”

And the answer, based on this particular case: pretty darn far.

Here’s what happened. The complainant, a management and program analyst for the FBI, had exhibited some attendance issues and so the FBI issued a notice of proposed removal. In response to the notice, the employee disclosed that she suffered from major depressive disorder and anxiety disorder, and those disabilities were the cause of her attendance issues. She asked the FBI for an accommodation that would allow her a flexible amount of time (the language in the case is “daily variable schedule”) to complete her scheduled 80 hours of work per pay period. She even provided medical documentation that said she was “chronically sleep deprived” and a flexible schedule would provide her with a medical benefit.

The FBI supervisor, probably trying to be nice (because there is no legal requirement to cancel proposed discipline after the disclosure of a disability), held the removal in abeyance for 90 days and granted the complainant a “gliding schedule” that would allow her to report to work any time between 8:00 and 9:30 a.m. Despite this accommodation, the complainant was still late for work 21 times during the 90-day period. According to the agency, the complainant blamed several of her late arrivals on child care issues.

So, after the 90 days elapsed, the agency removed the complainant for AWOL and she filed a reasonable accommodation claim and requested a Final Agency Decision. The FAD found that Complainant was not denied a reasonable accommodation, and so she filed an appeal to the Office of Federal Operations.

The EEOC found that the FBI did not grant a reasonable accommodation and remanded the case (5 years later!), citing a few reasons:

  • The complainant contacted her supervisor on 18 of the days she was going to be late, and the agency did not consider granting the complainant leave as accommodation for her tardiness in those instances, instead marking her AWOL.
  • The child care issues were related to the underlying disability.
  • A maximum flexible schedule would have been an effective reasonable accommodation, and the agency did not demonstrate why the complainant needed to arrive to work by 9:30 a.m.
  • The agency did not demonstrate that granting a maximum flexible “gliding” schedule would be an undue hardship.

When I read the case, I don’t see anywhere that the employee requested a “maximum gliding schedule” for the agency to consider. She asked for a “daily variable schedule” which it appears the agency offered her, by allowing for a 90-minute window in which to arrive. But what do I know?

Yep. The EEOC said that the complainant’s oversleeping was a result of her disability and the underlying cause of her attendance issues, so therefore she was not AWOL when she didn’t get to work on time and didn’t call in, and the agency should not have expected her to arrive by 9:30 each day. Davina W. v. FBI, EEOC Appeal No. 0120152757 (December 8, 2017). [Editor’s note: The supervisor might have been able to defend his actions in this claim if he had kept notes of the harm that occurred each time the employee was late. That’s something we’ve been teaching for nearly 20 years. Contemporaneously document your reasons for doing something adverse to an employee, especially if it has the potential to show up as an issue in an appeal/complaint.]

I guess that’s what you get for being a nice supervisor and holding a removal in abeyance, huh? [email protected]

Bug Bites: How Do You Handle an Employee Who Brings Bed Bugs in to the Office?

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By Deborah Hopkins, February 14, 2018

A few days ago, I got an interesting hypothetical question from a long-time FELTG reader, and it was such a good one I thought I’d share it with the rest of you. It’s something I hope is always hypothetical and you never have to deal with in real life. Here we go:

Hi FELTG,

I have attended many of your trainings and your instructors have even been out to my agency to train our lawyers and HR personnel.  I have a hypothetical strange case that I was hoping I could bounce off of you all.

Hypothetically, what should an agency do if it has an employee who is bringing bed bugs into the office? Let’s say the agency has already paid for an exterminator once and the exterminator confirmed that this employee’s office was the source of the infestation.  Let’s also say that the employee’s supervisor has talked with the employee to notify her of the problem (if she wasn’t already aware), and she told management that she would address it.

Now let’s say it’s a few weeks later and there are still bed bugs in the office, and it’s so bad that other employees are getting bit. Because coworkers getting bit by the bedbugs, this is hypothetically creating a massive morale issue in the office. What do you think a hypothetical agency should do in a case like this? Here are some thoughts:

  1. Do I give him an order and then discipline him if he doesn’t follow that order?  Is my order “Do not bring bed bugs into the office”?
  2. Do I indefinitely suspend him until such time as he can prove to the agency that he has addressed the problem at his home?
  3. Do I put him out on enforced leave (I don’t like this option)?
  4. Do I allow him to come to work but separate him from everyone else and force him to bring a change of clothes each day that is in a sealed plastic bag?

I’m assuming that someone must have dealt with something like this before.  Do you have any thoughts?

And here’s the FELTG response:

Dear well-thought-out FELTG reader,

What an interesting hypothetical you’ve presented to us. While this person’s behavior clearly involves employee safety and health, it’s also misconduct – and as you know from being a long-time FELTG reader, charging misconduct is fast, easy, and free. You give her an order, thereby making it her problem to resolve, and “Do not bring bed bugs into the office” is a clear, understandable order. Of course, you’ll document this conversation with her.

If you’re not going to fire her when she violates the order (if you determine the misconduct does not rise to the level of removable misconduct under Douglas) you can even do an indefinite suspension until she demonstrates medically she is free of the little critters, see, e.g., Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1997); Moe v. Navy, 2013 MSPB 43 (June 14, 2013), which don’t deal with bedbugs but say that an agency can indefinitely suspend an employee, pending inquiry, for psychological or other medical reasons if the agency has a sufficient objective basis for doing so. We never have to tolerate unsafe or, for lack of a better term, unsanitary, conduct in the workplace.

No need to do enforced leave, and (not legal advice, just personal advice) I wouldn’t do Option 4 because the plastic bags might not work, and it would just drag out the inevitable.

Thanks for the note, and good luck if a case like this ever presents itself in real life! 😉

[email protected]

More on the Dangers of Charging Intent: Threat and Willful Misconduct

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By Deborah Hopkins, February 14, 2018

Last month we discussed charges that carry an element of intent. If you didn’t get a chance to read it, check it out here: https://feltg.com/the-dangers-of-charging-intent/. As a reminder, if a charge includes an element of intent, the intent must be proven by a preponderance of the evidence. Usually we don’t have a confession showing intent, so we look at circumstantial evidence and consider the totality of the circumstances. Naekel v. Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986); Boo v. DHS, 122 MSPR 100 (2014).

This month we will be looking at two specific charges: threat and willful misconduct.

Threat

The lead case on threat is Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986). If you haven’t read it, you really should. As a quick summary, though, Mr. Metz was an instructor at the Federal Law Enforcement Training Center, and he was not happy with his performance evaluation: he received an annual rating of “excellent” but believed he deserved an “outstanding,” and he said he would harm himself and others. Two of Metz’s coworkers also reported that they heard Metz say he was going to kill his supervisors.

Threats of harm against a government supervisor are taken seriously, though sometimes it is difficult for an agency to determine if a threat actually has been made, or if a person is just talking out of frustration or anger. In reviewing removals based on threat charges, MSPB must use “the connotation which a reasonable person would give to the words.” Meehan v. USPS, 718 F.2d 1069, 1075 (Fed. Cir. 1983). In other words, look carefully at the circumstances.

Metz sets out five factors to help determine whether a threat has been made:

  1. The listener’s reaction;
  2. The listener’s apprehension of harm;
  3. The speaker’s intent;
  4. Any conditional nature of the statements; and
  5. The attendant circumstances.

Intent evidence shaky? Consider another charge for the misconduct. Discipline has been upheld for a charge of “Making statements that caused anxiety and disruption in the workplace,” McCarty v. Navy, 95 FMSR 5122 (1995), and charging “inappropriate conduct,” but bringing intent evidence into the Douglas analysis as justification of a more severe penalty, Brough v. Commerce, 119 MSPR 118 (2013).

Willful Misconduct

So, what the heck is this charge “willful misconduct”? It’s a deliberate and intentional (not careless or heedless) disobedience of a lawful order. So if you’ve got intent evidence that the disobedience was intentional, go forth and charge. However, as always when dealing with intent, proceed with caution.

The line between careless and willful should not be ignored.  We often see employee injuries and workers’ compensation claims in cases of willful misconduct, and when an employee’s willful misconduct leads to his injury, his actions take him out of the performance of duty. I.A. and USPS, No. 15-1913 (ECAB 2016). For example, a USPS employee drove a GOV without a seatbelt and entered an intersection with the vehicle’s passenger-side door open. These behaviors were not willful misconduct but rather were lapses of judgment, because they did not exhibit wanton or reckless disregard of probable injurious consequences. L.R. and USPS, No. 08-84 (ECAB 2008). Because there was no evidence of premeditation…or intentional wrongdoing, or that the employee knew his behavior was likely to result in serious injury, his claim was not precluded under workers’ comp. Id.

As we said last month, and will say a thousand more times, the bottom line in labeled charges that contain an intent element: be sure you have a preponderance of the evidence on intent, because if you don’t you will lose your whole case, and Mx Misconduct will be coming back to work for you. [email protected]

Shall, Will, May, or Must?

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By Deborah Hopkins, January 17, 2018

It’s every legal writer’s conundrum: when writing a legal document, which word of the following is the strongest to use, imposing a mandatory requirement on the recipient of the document:

A. Shall

B. Will

C. May

D. Must

The answer? D.

The only word of obligation from the list above is must – and therefore, the only term connoting strict prohibition is must not. The interpretation of everything else is up for debate.

Don’t believe me? You don’t have to take my word for it. Just about every jurisdiction in this great country has held that the word shall, while the most often used of the above, is also the most confusing because it can mean may, will, or must. Our very own U.S. Supreme Court has interpreted the word to mean may. In fact, it’s so confusing that the Federal Rules of Civil Procedure no longer use the word at all.

We quote Bryan Garner, one of our favorite authors, quite a lot during our legal writing classes because the guy just gets it; he understands what it means to beat your head against a wall trying to get a legal document just right, and understands that sometimes one word can alter the meaning of an entire sentence, paragraph, or document. On the topic of today’s article, he says, “In most legal instruments, shall violates the presumption of consistency…which is why shall is among the most heavily litigated words in the English language.” Hahaha. Nothing like lawyers to make black and white seem like all the shades of gray. Isn’t this a fun business we’re in?

To be fair, it’s not really our fault that this confusion exists. We can blame our law school professors: until just a few years ago, even the top tier law schools were teaching students that the word shall means must. The Federal Plain Writing Act only clarified this in 2010, and clearly a lot of us didn’t get the note. Props to the FAA, though, as it was the first agency to bring this topic to our attention.

So, realizing that words that sound alike may have very different meanings, let’s look at an example from a hypothetical EEO settlement agreement:

A. The agency shall return the complainant to her previous position as a GS-4 File Clerk and the complainant shall withdraw her complaint.

B. The agency will return the complainant to her previous position as a GS-4 File Clerk and the complainant will withdraw her complaint.

C. The agency may return the complainant to her previous position as a GS-4 File Clerk and the complainant may withdraw her complaint.

D. The agency must return the complainant to her previous position as a GS-4 File Clerk and the complainant must withdraw her complaint.

Yep, I’m going with D. Remember, when you want something to be mandatory – like a settlement agreement that requires both sides to do something – use the word must instead of shall, and you’ll have a document that carries with it a firm legal obligation. For more on this topic see the Federal Plain Language Guidelines (page 25) and the Federal Register Document Drafting Handbook (Section 3).

And if you really can’t get enough of this stuff, join us for this upcoming writing workshop in Washington, DC: Writing for the Win: Legal Writing in Federal Sector EEO Cases (May 8-10).

And now, I must go. [email protected]

The Dangers of Charging Intent

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By Deborah Hopkins, January 17, 2018

One of the more interesting – and precarious – challenges that attorneys, HR practitioners, and supervisors in our business come across in misconduct cases is a word that you probably remember from way back in your Criminal Law class, if you went to law school: intent. Proving intent can be difficult, and while in the criminal world lesser-included offenses automatically apply (for example, if you can’t prove Murder 1, Murder 2 is a lesser-included offense that rides along with the Murder 1 charge), in the business of federal employment law, failing to prove intent might just cause you to lose your entire case – even if you have incontrovertible video evidence and 100 witnesses who can swear that the employee engaged in misconduct.

In our business, labeled charges (for example, falsification; theft) come with an element of intent, and the intent has to be proven by a preponderance of the evidence. So, how does one prove intent? Well, unless we have an appellant who admits they intended to tell a lie or to permanently deprive someone of something, intent is proven by considering the totality of the circumstances. Naekel v. Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986); Boo v. DHS, 2014 MSPB 86.

When it comes to intent charges, we have a few common categories that are worth exploring. Today we’ll cover deceit/falsification and insubordination. In the next newsletter we’ll tackle threat and willful misconduct.

Deceit/Falsification

In order to prove Falsification, the agency must prove that the information given by employee is:
1. Either
– False,
– Misleading, or
– Incomplete,
2. Given with the intent to deceive, and
3. For private material gain
Boo, supra.

All of these elements are required, so just because an agency can show that an appellant has provided incorrect information, this proof in itself does not control the question of intent for purposes of adjudicating a falsification charge. Reid v. Navy, 118 MSPR 396 (2012) (intent may be negated if there is evidence the appellant does not believe he has done anything wrong). Because we’re talking about circumstantial evidence, intent may also be inferred when the misrepresentation is made with a reckless disregard for the truth, or with conscious purpose to prevent the agency from learning the truth. Crump v. VA, 114 MSPR 224, ¶ 6 (2010).

One of the common ways agencies lose the intent argument is when an employee makes a good-faith explanation for the behavior that seems deceitful, and the agency still decides to charge the employee with falsification. A reasonable good-faith belief in the truth of a statement precludes a finding that an employee acted with deceptive intent. See, e.g., Leatherbury v. Army, 524 F.3d 1293 (Fed. Cir. 2008) (appellant who requested mileage reimbursement to which he was not entitled had a reasonable good faith belief that he could seek reimbursement, therefore he could not have been reckless with regard to the truth because of that reasonable good faith belief).

The absence of a credible explanation for the incorrect information can constitute circumstantial evidence of intent to deceive. Crump, supra (the totality of the circumstances and lack of plausible explanation showed the appellant falsified his educational background, a medical record, and information related to a military leave request with the intent to deceive or mislead).

If your intent to deceive evidence is shaky, consider charging lack of candor, which is a more flexible charge that need not require proof of intent to deceive. See, e.g., Ludlum v. DoJ, 278 F.3d 1280 (Fed. Cir. 2002). And always remember, you can pump up the penalty by putting intent in the Douglas analysis; if you lose it down there, your case isn’t necessarily dead.

Insubordination

Insubordination is “The willful and intentional refusal to obey an authorized order of a superior that the superior is entitled to have obeyed.” Phillips v. GSA, 878 F.2d 370 (Fed. Cir. 1989), which is a distinct charge from failure to follow a policy, Brown v. Air Force, 95 FMSR 5182 (1995).

Here are examples of a few cases where agencies were able to prove the intent element in insubordination charges:

• Refusal to comply with a supervisor’s order to go home, Ziegler v. Treasury, DC-0752-11-0645-I-1 (2013)(NP).

• Disobedience of an order to be vaccinated against anthrax, Mazares, Jr. v. Navy, 302 F.3d 1382 (Fed. Cir. 2002).

• Refusal to answer a supervisor’s questions in connection with a work assignment, Shaw v. Air Force, 98 FMSR 5373 (1998).

• Refusal to submit to drug testing, Watson v. Transportation, 91 FMSR 5447 (1991).

And here are a few that agencies lost:

• A brief delay in providing information sought in connection with an investigation, Milner v. Justice, 97 FMSR 5455 (1997).

• Refusal to comply with an order that would have placed the employee in imminent danger of serious injury, Washington v. VA, 91 FMSR 5486 (1991).

• A sincere but unsuccessful attempt to comply with an order, Forgett v. Army, 90 FMSR 5329 (1990).

• Failure to comply with an order or direction that is not sufficiently clear, Drummer v. GSA, 84 FMSR 5706 (1984).

If you’re having trouble on the intent evidence in these cases where you want to charge insubordination, consider instead charging something like failure to follow orders, which does not require willful refusal to obey an order but just requires proof the employee did not do what he was told to do. See Hamilton v. USPS, 71 MSPR 547 (1996).

The bottom line in labeled charges that contain an intent element: be sure you have a preponderance of the evidence on intent, because if you don’t, you lose the whole thing. [email protected]

It’s Called Sexual MISCONDUCT for a Reason

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By Deborah Hopkins, December 13, 2017

You probably saw last week that Time Magazine’s 2017 Person of the Year is not a person at all, but rather is a group of people: “The Silence Breakers,” the women who came forward under #MeToo as victims of sexual harassment and assault.

This #MeToo movement continues to reveal more details of sexual misconduct in the workplace, and more horrifying details of sexual misconduct – from the highest levels – are coming out. It may seem like “guilty until proven innocent” is the trend in Hollywood (think Matt Lauer; Kevin Spacey; Harvey Weinstein), but keep in mind that there’s a lot we don’t know about why those ramifications hit so quickly. There could have been admissions, confessions, or agreements to resign.

What we do know is that because of these front-page stories, there is now a heightened awareness and sensitivity to sexual harassment and related inappropriate conduct in the federal government. Sexual misconduct among federal employees is not anything new, but because it’s a topic on everyone’s minds, it’s worth a deeper look today.

First of all, sexual harassment is a term of art and while it’s easy to allege, it’s actually not that easy to prove. There are elements to a sexual harassment claim, and the complaining employee must prove them all in order to prevail. So, there is a LOT of inappropriate conduct that does not rise to the level of Title VII sexual harassment but is still inappropriate in the workplace.

What does this mean for you, at your agency? It means you should not wait to discipline an employee who engages in inappropriate sexual conduct until a complaint of sexual harassment is filed or proven. The EEO complaint process takes so long, you could have a predator roaming the halls of your agency for years before there’s ever a finding. So do not delay.

A lesson we learned from the Postal Service 30 years ago is that an agency can remove an employee for inappropriate sexual conduct, even if the conduct does not rise to the level of Title VII harassment. It bolsters the agency’s case for removal if the employee’s conduct affects other agency employees, and if the agency has a legitimate concern about incurring potential Title VII liability if it fails to take appropriate action to correct the employee’s behavior. See Carosella v. USPS, 816 F.2d 638 (Fed. Cir. 1987). Part of an agency’s obligation in these cases is to promptly investigate and STOP harassment from occurring, so acting quickly is the best way to protect employees from harm – and to protect your agency from liability.

So, what kinds of cases warrant removal as an appropriate penalty? Let’s look at a few.

Supervisor Misconduct

Supervisors are held to a higher standard than co-workers, so if the perpetrator is a supervisor we know that removal can be warranted, especially when there are multiple charges of inappropriate sexual behavior toward subordinates. Last year the MSPB affirmed a supervisor’s removal for Unacceptable Conduct where the supervisor made inappropriate comments with sexual undertones to several subordinates, including telling an employee that he was willing to help her cheat on her husband, and telling a different employee that she could take the day off if she was willing to act “a little unprofessional.“ Oliveros-Ballon v. USPS, SF-0752-15-0615-I-1 (April 15, 2016)(NP).

In another recent case, a supervisor’s removal was affirmed after she made comments of a sex-based nature and touched an employee on the buttocks on multiple occasions. That’s right, female supervisors engage in this type of behavior as well, and are disciplined accordingly. Reid v. Air Force, CH-0752-14-0849-I-1 (April 5, 2016) (NP).

Over at the VA, a supervisor’s removal was affirmed after he was charged with 20 counts of inappropriate and intimidating sexual comments, sexual conduct, and changes to working conditions, of his female employees. Alberto v. VA, 98 MSPR 50 (2004).

There are hundreds, if not thousands, of cases that follow this same line of outcome, but hopefully by now you get the idea. Sexual misconduct – regardless of what you decide to call the charge – is nothing new and agencies have been successfully removing supervisors for decades over inappropriate sexual language and conduct in the workplace.

Coworker Misconduct

In the case of a non-supervisor, though, removal is often still an appropriate penalty. Earlier this year, the Federal Circuit upheld a removal for Unacceptable Conduct where the appellant made 10 vulgar sexual comments to female customers and coworkers. Canarios v. USPS, No. 2017-1935 (Fed. Cir. 2017) (NP). In another recent case, an MSPB AJ upheld a Conduct Unbecoming removal when an appellant made sexual comments and gestures at three coworkers and did not stop after they objected to his conduct. Adkins v. DOD, SF-0752-16-0294-I-1 (December 12, 2016) (NP).

A Treasury employee’s removal was upheld by the MSPB because he continued to talk to a coworker in sexually offensive and derogatory terms, after being explicitly told by management not to do so. Lentine v. Treasury, 94 MSPR 676 (2003). [Editor’s Note:  This is critical and sometimes, this is hard. Before we can discipline, the employee has to be on notice of the prohibited misconduct. Some conduct obviously violates accepted norms of behavior and can be disciplined even if we did not tell the employee not to do it; e.g., non-consensual sexual touching. On the other hand, some conduct is not so obviously inappropriate; e.g., touching someone’s shoulder. The manner and context of conduct often determines whether the employee should have known not to do it; e.g., was the shoulder touch an “Atta boy/girl” congratulation or was it a “Hey, baby. You got some nice sexy shoulders there.” The good news is that a supervisor can establish rules that clarify any gray areas; e.g., “No touching. Anywhere. Any time.”]

This is serious stuff that requires appropriate action.

If you’re dealing with a potential sexual misconduct charge, you’ll want to pay special attention to these mitigating or aggravating factors in penalty selection for sexual harassment cases:

  1. Physical contact
  2. Frequency or severity of the conduct,
  3. Supervisory status,
  4. Clarity with which employee is on notice of rules prohibiting sexual harassment and improper conduct, and
  5. The employee’s potential for rehabilitation.

See, e.g., Reid, supra.

Is there a correct way to handle in these cases? Yes. The answer is to take prompt, effective corrective action so that these behaviors do not continue. Look to the cases for guidance. And hey, while it seemed for a while that Congress was above it all, we’re finally starting to see that in sexual misconduct is a serious offense, and it deserves consequences, no matter who you are. [email protected]

How Much Workplace Violence Do I Have to Put Up With?

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By Deborah Hopkins, November 15, 2017

Here’s a note a reader recently sent:

Dear FELTG,

I work in a federal agency but NOT in a federal building. We don’t have metal detectors – just a security person at a reception desk, who is sometimes there and sometimes not. I have never been bothered by working in a non-secure building until recent events in the media – most recently, a few days ago when a man shot and killed three coworkers, and injured two other, outside Baltimore. While we don’t know much yet about the shooter, I have to wonder if he had violent tendencies and whether this could have been stopped before it happened.

This leads me to my questions:

  1. Can a federal agency fire someone who shows violent tendencies in the workplace?
  2. If so, what should the charge be, and how much proof do we need?

Thanks for your help.

And here’s the FELTG response:

Thanks for your note. I’m sure you’ve heard us talk or write about the sad fact that over 400 people die at work every year at the hands of a co-worker. It’s a tough reality. Regarding your questions, let’s take them in order:

  1. Yes. If the employee has engaged in misconduct – broken a rule – you can propose removal if, in doing the Douglas analysis, you determine that the misconduct warrants removal. (If you’re at the VA, a new law means you don’t even have to do Douglas.)
  2. As far as proof, you’ll need a preponderance of the evidence – that it’s more likely than not – that the individual did whatever you charged him or her with. The charge you use will depend on the facts of the case. Is the individual assaulting people, threatening people, or destroying property? You want to make sure to select a charge that you can prove. (If you’re at the VA, you only need to prove the misconduct by substantial evidence.)

Here are a few case examples where removal for threatening or aggressive-type behavior was appropriate:

Charge: Unacceptable Conduct

A letter carrier’s removal was upheld after he used profanity toward a co-worker and punched the co-worker in the head. Davis v. USPS, 487 F. App’x 571 (Fed. Cir. 2012) (NP).

Charges: 1) Violation of the Code of Professional Responsibility; 2) Off-Duty Misconduct; 3) Unnecessary Display of a Weapon

A U.S. Deputy Marshal’s removal was upheld for an off-duty altercation. The Marshal had stopped his car in the middle of the street and was arguing with his girlfriend, and when two people he did not know told him to move his car so they could drive past, the Marshal “slapped” the driver’s car, and then pulled out his firearm and pointed it above the driver’s head. Rodriguez v. DOJ, NY-0752-10-0081-I-1 (2011) (NP)

Charges: 1) Creating a Disturbance, and 2) Insubordination

Removal was upheld where the appellant, a Legal Administrative Assistant, refused to comply with an agency police officer’s orders, started “flailing” his elbows, and injured two officers who were attempting to take him into custody. Sousa v. Army, 108 F.3d 1391 (February 11, 1997)

Charge: Threatening a Coworker with a Knife

Removal was upheld for an Army weapons explosives operator, who flipped out the blade of his pocket knife and told a coworker he would cut the buttons off her overalls. Despite his defense that he was joking, the coworker testified she felt threatened, and witnesses concurred. McGuire v. Army, 333 F. App’x 528 (Fed. Cir. 2009) (unpublished)

If an agency’s charge includes the word “threat,” it is wise to be sure a threat has actually been made. The MSPB looks to the Metz factors in analyzing charges of threat: 1) the listener’s reactions; 2) the listener’s apprehension of harm; 3) the speaker’s intent; 4) any conditional nature of the statements; 5) the attendant circumstances. Metz v. Treasury, 780 F.2d 1001 (Fed. Cir. 1986)

If any of the Metz factors are shaky, it’s probably best to frame the charge differently. Remember, too, if there’s an emergency situation, you can – and should – call 911.

If you need to know more about this all-too-important topic, join us for the 2018 webinar series Behavioral Health Issues in the Federal Workplace, or join us for the brand-new two-day program Handling Behavioral Health Issues and Threats of Violence in the Federal Workplace March 6-7 in Honolulu. [email protected]