What Everyone’s Asking: A Q&A on Conflict, Accountability, and Morale

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June 2, 2025

It’s been quite a year so far, with more change than many of us have experienced in the entirety of our lifetimes. Some people handle change well; for others, it’s quite the challenge.

Amid all the change, FELTG caught up with instructor Ann Modlin (pictured at right) as she was preparing for her June 12 class Management Essentials for 2025: Address Conflict, Increase Accountability & Build Morale. Ann’s two-plus decades of experience as a government attorney – and, for many years, a supervisor – combined with her insight into current Federal workforce challenges, create the perfect confluence for a training that combines current events, the law, and practical skills to help make the workplace more efficient, and yes, enjoyable.

Read on for our questions and her answers.

FELTG: Why is now a good time for supervisors and advisors to think about the relationship among conflict, accountability and morale?

AM: Because it’s always a good time to analyze the workplace aspects of conflict, accountability, and morale. The three concepts play on each other every day, and too often supervisors and advisors do not take the time to really assess that interplay. Understanding that conflict is not inherently bad, but instead taking the steps to understand it, helps with building accountability and morale. And that makes the workplace better for everyone.

FELTG: What potential conflicts should employers be aware of as more employees are now reporting to work onsite?

AM: Conflict is typically a function of personality. When people interact more on a daily basis, as will occur with the shift to working onsite, those personality differences are more obvious and have a greater chance of resulting in conflict. Early intervention and establishing boundaries will go a long way.

FELTG:  Do you have any suggestions about the best way for a supervisor to handle a conflict between coworkers?

AM: The key to handling conflict between coworkers is to understand fundamental personality differences. Seventy-five percent of people have different core personality types than our own, but most people do not contemplate how that impacts on interpersonal relationships. A knowledgeable supervisor can help employees appreciate their differences, which can be a helpful step to mitigate the conflict.

Join us on June 12 for much more information on these important topics, or bring this class specifically to your agency. It’s too important to miss. [email protected]

Related training:

Is Taking a Nap Every Two Hours a Reasonable Accommodation for Narcolepsy?

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By Deborah J. Hopkins, May 15, 2025

 

Key facts:

  • The complainant had two reasonable accommodations for his narcolepsy – periodic naps, and flexibility to travel to obtain medication refills.
  • The agency terminated the complainant after he requested – and the agency granted – a modification to his medication refill travel schedule.
  • The EEOC found the agency retaliated against the complainant because of his accommodation requests, and created a hostile work environment when it transferred him to a new position and then terminated his employment.

This case involves a contractor who had worked with the State Department for 30 years, and who for the past 10 years had worked in Iraq as a Systems Administrator. In October 2020 he claimed the agency discriminated against him on the bases of disability (Type I Narcolepsy, Colon Cancer) and in reprisal for prior protected EEO activity when:

  1. On July 20, 2020, he was terminated from his position as a contractor for the agency; and
  2. Since the fall of 2018, he was subjected to a hostile work environment characterized by, but not limited to, heightened scrutiny and disapproval of his reasonable accommodation.

Wes L. v. State, EEOC App. No. 2021005122, 2 (May 15, 2023).

The case primarily focuses on the reasonable accommodation requests related to the complainant’s narcolepsy, “which flares up when he misses his medication. If he misses his medication, he experiences hallucinations, nausea, double vision, and daytime sleepiness. … Because he experiences daytime drowsiness and sudden attacks of sleep, his narcolepsy reportedly impacts his sleep, ability to work, and his ability to eat.” Id.

Agency-approved accommodations for the complainant’s narcolepsy included a 15-minute nap every two hours while he was on duty, and the flexibility to return to the United States periodically to obtain medication that was not available to him in Iraq.

On a 2020 trip to the United States he requested to return to Iraq on a flight a few weeks later than originally scheduled, so that he could obtain enough medication to last him an additional three months in Iraq. The agency granted the request, but then terminated him just days later, claiming that the last-minute change of plans for his return flight left the agency unable to replace the complainant with another contractor, which caused a customer service hardship.

While the Commission found this was a legitimate, nondiscriminatory articulation of the agency’s reasoning, it also found the agency’s claim was pretextual and the facts did not support the agency’s assertion about the timing of the complainant’s request to change his flight. Therefore the agency “retaliated against Complainant in violation of the Rehabilitation Act when it asked that Complainant be removed from his post with the Agency following his request for reasonable accommodation.” Id. at 7.

The case also addressed the complainant’s claims of hostile work environment harassment and found that the complainant’s job transfer (motivated by his supervisor’s disapproval of his need for naps) and his termination amounted to tangible employment actions taken because of the reasonable accommodation requests. [email protected]

Related training:

When Calling Your Supervisor a “F*cking Motherf*cker” is NOT a Removable Offense

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By Deborah J. Hopkins, April 29, 2025

Key facts:

  • The appellant experienced a stress-induced heart attack at work.
  • He was removed for inappropriate conduct after yelling and cursing at his supervisor including multiple uses of the f-word, when his supervisor did not immediately sign a workers compensation form related to the heart attack.
  • The AJ mitigated the removal to a 30-day suspension, finding the deciding official did not appropriately consider  mitigating factors, and the Board agreed.

Over coffee the other morning, I finally caught up on my case reading: about 100 MSPB nonprecedential cases that have been issued in the last several weeks.

One that caught my attention was Rike v. Navy, PH-0752-23-0075-I-1 (Mar. 31, 2025)(NP), where the agency removed the appellant, GS-12 Supply Management Specialist, for inappropriate behavior. The appellant had “yelled and cursed at [his supervisor], called him a “f*cking liar” and a “[f]*cking [m]other [f]*cker,” and “demanded that [the supervisor] sign” a workers compensation document about the appellant’s recent workplace-related health episode – a heart attack caused by stress. Id. at 3. The appellant had been disciplined twice prior to this incident.

Under Board precedent, agencies can usually justify removal for a third offense of just about any misconduct based on multiple instances of prior discipline. And here, the appellant’s disciplinary record included a letter of reprimand for unauthorized absence, lack of candor, and failure to follow instructions, and a 14 -day suspension for failure to comply with timekeeping procedures. Id. at 7.

The administrative judge (AJ) mitigated the removal to a 30-day suspension and the Board agreed, finding the agency’s Douglas factors analysis was flawed because the deciding official (DO) did not give proper consideration to several mitigating factors.

The case points out, “In concurring with the proposing official’s analysis, the deciding official assigned more weight to the appellant’s prior unrelated discipline.” Id.

The Board continued:

Although the Board generally will not discount a prior disciplinary record because it is for an unrelated offense, if the nature of the prior misconduct is sufficiently different from the charges in the proposal at issue, the difference may significantly diminish the weight of that prior discipline in determining a proper penalty. See Skates v. Department of the Army, 69 M.S.P.R. 366, 369 (1996); Lewis v. Department of the Air Force, 51 M.S.P.R. 475, 484 (1991). As such, we are unconvinced that the appellant’s attendance-related discipline, which is sufficiently different from the charged inappropriate behavior, outweighs his 10 years of service, which was free from the discipline at issue here.

Id.

The Board also addressed other mitigating factors and found the DO did not give them appropriate consideration:

  • The appellant’s stress levels which caused his on-duty heart attack;
  • The appellant’s allegations of bullying and harassment from his immediate supervisor and other management officials, which included a pending EEO complaint against his supervisor;
  • The appellant’s satisfactory performance evaluations;
  • The agency’s identified comparator employees had engaged in multiple instances of disrespectful conduct while the appellant engaged in a single instance;
  • The appellant’s supervisor was also yelling and shouting during the altercation; and
  • Instances of shouting and using inappropriate language were common in the shipyard.

Despite the Board’s statement that they acknowledged “the seriousness of the charge against the appellant and do not minimize its gravity,” id. at 9, they agreed with the AJ that a 30-day suspension was the maximum reasonable penalty. All the more reason for the PO to do a full Douglas analysis, and the DO to give a full explanation of all the Douglas factors – aggravating and mitigating – at hearing. [email protected]

Related training:

Federal Employment Law Terms of Art: The Right Definitions

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By Deborah J. Hopkins, March 4, 2025

A lot has been happening in the Federal workplace, especially related to employees being placed on admin leave, thousands of probationary terminations, and the beginnings of reductions in force. So FELTG has put together a mini-glossary of terms that we think you’ll find useful.

Administrative/admin leave: leave status imposed by an agency, where employees are sent home but retain full pay and benefits while not being assigned any work. Limited to 10 days per year for investigative purposes; other purposes (not defined in the regulation) do not have a cap. See 5 USC 6329a(b); 5 CFR §§ 630.1402-1404.

Investigative leave: a leave status imposed by an agency when an employee is the subject of an investigation and retaining the employee in the workplace during an investigation would be disruptive. Limited to 90 days per year. See 5 CFR §§ 630.1502-1504.

Proposed removal: a letter given to a Federal employee that informs her the agency is proposing to remove her from service (which means, fire her). The letter gives specific reasons about what the employee did wrong (called a disciplinary charge), and why removal is the appropriate outcome (penalty justification). The letter gives the employee a period of time (usually 7-14 days) to respond to the deciding official and tell her side of the story, and it informs her she has the option be represented by someone she chooses (such as an attorney, union official, or personal friend). In most cases, an employee does not have the right to appeal or challenge a proposed removal because it is a preliminary action and not an official action. An employee can, however, appeal a removal decision.

Proposing official: the agency management official who proposes a disciplinary action, including removal. Often this is the employee’s immediate supervisor, but it can be any agency management official.

Deciding official: the agency management official who decides on the outcome of a proposed removal after considering the employee’s response. Often this is the employee’s second or third level supervisor, but it can be any agency management official.

Probationary termination: the separation (firing) of a person who works for a Federal agency who has not yet earned “employee” status (usually someone employed by the government for one year or less; two years for excepted service). See 5 USC 7511 or other relevant statute. Probationers can be terminated quickly for even minor reasons, but the reason must be given to the employee in writing before the termination is effective.

Deferred resignation: an agreement between an employee and an agency that the employee will resign on X date in the future in exchange for something from the agency, such as continued pay through X date. A deferred resignation must be in writing and signed. It is effective and binding on the date it is signed by the second party.

RIF: a reduction in force, the term the government uses to describe a layoff. A RIF is used when an agency abolishes a job position. OPM says RIFs are usually the result of a “reorganization, including lack of work, shortage of funds, insufficient personnel ceiling, or the exercise of certain reemployment or restoration rights.” There are complex regulations that govern a RIF that determine which employees are removed and which employees stay on the payroll. An agency must give an employee notice of its intent to remove him as the result of a RIF. See 5 CFR § 351.

Layoff: a broad term for removing a person from employment for non-disciplinary reasons, such as budget or change in workplace needs. Not typically a term used in reference to cutting the size of the government workforce, but often used outside of government.

Related training:

When Overzealous Management Becomes (Potential) Harassment

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By Deborah Hopkins, February 18, 2025

Quick facts:

  • An employee claimed sex-based harassment after her supervisor’s threatening behaviors.
  • The agency dismissed the complaint for failure to state a claim.
  • EEOC remanded for investigation because the facts as alleged could have sufficiently impacted the complainant’s terms, privileges, or conditions of employment.

If I had a dollar for every time an employee claimed “harassment” by a supervisor who was actually just doing their job, I would be long-retired and living life in a hammock on an island somewhere. Many, if not most, allegations of harassment against a supervisor end up being non-meritorious – meaning, not discrimination and not related to the person’s protected EEO categories.

But there’s always an exception. Consider Herta R. v. USPS, EEOC App. No. 2024003913 (Nov. 6, 2024). The complainant alleged her supervisor was harassing her based on sex, and made her feel physically threatened when he:

  • Approached her aggressively;
  • Got close enough to her face that she could smell his breath, then yelled at her and threatened her;
  • Followed her around work for approximately 30 minutes; and
  • “Cornered” her at work, which prevented her from going into the women’s restroom or exiting the building to get away from him.

The agency dismissed the complaint for failure to state a claim (29 C.F.R. § 1614.107(a)(1)), and the complainant appealed to the EEOC. The questions before the Commission included:

  • Whether the complainant was an “aggrieved employee” who suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy (Diaz v. USAF, EEOC Req. No. 05931049 (Apr. 21, 1994)), and
  • Whether the alleged harassment would be sufficiently severe or pervasive to alter the conditions of the complainant’s employment (Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)).

The EEOC found the agency improperly dismissed the complaint because the complainant “sufficiently alleged that she was subjected to verbal or physical threats of violence because of her sex.” Herta R. at 4. As a result, the EEOC remanded the case back to the agency to process the complaint.

This doesn’t mean the complainant will ultimately prevail, but it means the agency is required to investigate the allegations to determine the facts.

Nearly a year passed between the time the complainant made her first harassment allegation and when the EEOC remanded the case, so the agency’s investigation is most likely happening as you read this. There is a lot to consider when investigating issues that occurred long in the past, so check out FELTG’s upcoming training calendar to see some of the topics we’ll be covering in 2025. [email protected]

Related trainings;

How to Get to the Federal Circuit when MSPB Loses its Quorum

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Updated June 15, 2025

By Deborah J. Hopkins, February 14, 2025

Last month the Supreme Court allowed Cathy Harris, who until recently was Chair of the U.S. Merit Systems Protection Board (MSPB or Board), to remain fired while her case is pending in Federal court. Harris was serving a seven-year term in a Senate-confirmed position set to expire in 2028 when she was fired by President Trump in February, and her lawsuit claims her removal was illegal because the statute permits removal only for cause and the President had no cause. The Trump administration’s stance is that he should be able to fire the head of any independent agency without cause, and that any restraint on that authority is unconstitutional.

Among other things, the MSPB adjudicates covered Federal employee appeals of their removals from service. Administrative Judges (AJs) hold hearings and issue decisions on the removals, and the judges’ decisions can then be appealed through a Petition for Review (PFR) to the three-member Board.

Because Harris has not been reinstated, the three-member Board at MSPB is without a quorum; at Member Raymond Limon’s term expired Feb. 28 and only Acting Chairman Henry Kerner remains, as a new appointee has not been named. At least two Senate-confirmed members are required to issue decisions on PFRs.

And at a critical time where there’s been an influx of litigation over probationary removals, RIFs, and more, this little agency is crucial to the functioning of the executive branch. From 2017 to 2022, the Board was without a quorum because the Senate refused to vote on President Trump’s nominees from his first term, and as a result around 3,800 PFRs stacked up. This meant there were thousands former employees waiting years to find out if they would get their jobs back. Harris shared in February that 99 percent of the inherited inventory had been adjudicated since the Board regained its quorum in 2022.

So what does this lack of quorum now mean for Federal employees, or those former employees who were recently removed? Well, AJs will still be able to issue decisions of employee appeals, but PFRs of those decisions will stack up until a quorum is restored, just like we saw starting in 2017.

Unless.

There’s a lesser-known alternative to filing a Board PFR that you should know about: filing a PFR directly with the Court of Appeals for the Federal Circuit. If an AJ issues a decision and 35 days goes by without the former employee (called an appellant) or the agency filing PFR at the Board, the AJ’s initial decision becomes the final Board decision. This gives the parties the right to file a PFR of the AJ’s decision directly with the Federal Circuit. 28 USC § 1295(a)(9); 5 USC 7703(b)(1)(A); 5 CFR § 1201.113.

Usually, appellants file PFRs to the MSPB because it’s free, and filing in the Federal Circuit is not – it costs around $600. Also, the decisions on PFRs from the Board can still be appealed to the Federal Circuit – so appellants who go the route of taking the PFR directly to the Federal Circuit are losing an entire step of review.

The Federal Circuit’s scope of review in an appeal from the Board is limited by statute; it must affirm the Board’s decision unless the court finds the decision to be:

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 USC § 7703(c); see Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010).

Under the substantial evidence standard, this court reverses the Board’s decision only “if it is not supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Haebe v. DOJ, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (quoting Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).

In a typical year, the Federal Circuit upholds the MSPB’s decisions about 90-95 percent of the time. We expect we may see more Federal Circuit action in the coming months because the Board is once again without a quorum.  [email protected]

Related training:

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Denying Leave Wasn’t Discrimination, It Was Good Workplace Management

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By Deborah J. Hopkins, February 12, 2025

Quick facts:

  • Employee claims of discrimination often originate over disagreements with management practices or actions.
  • Employees are required to follow proper leave procedures, even in cases where the leave is an entitlement.
  • A complainant’s ten claims of discrimination failed because the agency articulated a legitimate, nondiscriminatory reason for each of its actions.

The annals of EEOC case law are full of decisions where employees file EEO complaints when they are unhappy with management, have personality conflicts with their supervisors, or perceive unfair treatment in the workplace. And while, unfortunately, we sometimes see illegal discrimination in the workplace, we also see complainants turn to the EEO process as a mechanism to challenge legitimate management actions.

Not long ago, this case caught my attention: Billy L. v. TSA, EEOC App. No. 2022004994 (Oct. 24, 2024). It’s worth a full read, but I’ll summarize it here.

The complainant was a transportation security inspector at the Denver International Airport who alleged age (61) discrimination and retaliation for prior protected EEO activity when:

  1. On September 27, 2021, management charged Complainant 3.75 hours of absence without leave (AWOL);
  2. On October 20, 2021, management denied Complainant’s request to change the September 27, 2021, AWOL charge to six hours of telework;
  3. On or after October 20, 2021, management denied Complainant’s request to claim 24 hours of paid administrative COVID-19 leave for October 6-8, 2021;
  4. On October 20, 2021, management denied Complainant’s request to claim eight hours of telework and/or claim eight hours of paid administrative COVID-19 leave for October 18, 2021;
  5. On November 4, 2021, management issued Complainant a 3.26 rating on his Fiscal Year (FY) 21 Employee Performance Management Plan (EPMP) appraisal;
  6. On November 19, 2021, management required Complainant to use one hour of annual leave in lieu of granting advance sick leave when Complainant requested leave under the Family Medical Leave Act (FMLA);
  7. On or after November 19, 2021, management required Complainant to conduct administrative duties while on FMLA;
  8. On December 1, 2021, management denied Complainant’s request for advance sick leave;
  9. On December 6, 2021, management denied Complainant’s request to telework on December 7, 2021; and
  10. On December 8, 2021, management issued Complainant a Letter of Reprimand (LOR).

Id. at 2.

I have no doubt this employee believed he was the victim of discrimination and retaliation – most complainants do. However, the agency successfully articulated legitimate, nondiscriminatory, and nonretaliatory reasons for each of the ten actions. A quick summary of the agency’s evidence on each claim:

Claim 1, AWOL charge

The supervisor explained the complainant was AWOL during the relevant hours and did not properly follow leave procedures, which required him to request unscheduled leave at least 60 minutes prior to the start of his shift. He did not notify his supervisor he needed to use leave until 3.75 hours after the start of his shift. Id. at 3.

Claim 2, Denial of EEO official time

The supervisor properly denied the complainant’s retroactive request to convert the September 27 AWOL charge to telework/official EEO time, because the complainant was required to request official time in advance and not after the fact. The supervisor granted the complainant’s proper request for future official time. Id.

Claims 3 and 4, COVID-related leave

The complainant, after recovering from COVID, informed the supervisor that he was changing his regular day off (RDO) and telework schedule in an attempt to get another day of COVID-related administrative leave beyond the ten days the agency had authorized. The agency’s policy required employees to request changes in advance, so the supervisor’s denial was appropriate.

Claim 5, Performance rating

The agency accurately rated the complainant’s performance as Achieved Expectations – the equivalent of fully successful – because the complainant “did his assigned work and met relevant performance standards … [but] did not do additional work to merit a higher rating.” Id. at 20.

Claims 6 & 8, Denial of advanced sick leave

The agency properly denied the complainant’s request for advanced Sick Leave because the complainant’s retirement date was set for the end of 2021, and he would not remain an employee long enough to “liquidate the indebtedness,” or pay it back. Id. at 12.

Claim 7, Administrative duties assigned while on FMLA

The supervisor sent the complainant emails telling him to submit his time and attendance into the timekeeping system, and that he was expected to review his annual performance appraisal. However, she credibly stated that she did not expect the complainant to perform any of these duties while in FMLA status and that she told him he could wait to perform these tasks until he returned from leave.  Id.

Claim 9, Denial of telework

The complainant did not report to work onsite on December 7, 2021, despite a supervisor’s explicit instructions on December 6 that he was required to report onsite on December 7. Therefore, the denial of telework status was appropriate.

Claim 10, Reprimand

The supervisor had a legitimate, nondiscriminatory reason to issue the reprimand because the employee failed to follow the supervisor’s instruction to attend a mandatory support block.

This is a perfect case to demonstrate that employees don’t take leave, they are required to request leave. Also, a supervisor’s appropriate leave denial is NOT discrimination or retaliation, it is proper management and enforcement of agency policies. As the EEOC concluded, “the record is devoid of testimonial or documentary evidence to contradict Supervisor1 and Supervisor2’s legitimate, non-discriminatory/retaliatory explanations provided. Moreover, the record is devoid of evidence of discriminatory or retaliatory animus.” Id. at 23. [email protected]

Related training:

Federal Employment Law’s 15 Minutes of Fame

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By Deborah J. Hopkins, February 10, 2025

Federal employment law is having a moment.

With the flurry of Federal workplace-related Executive Orders and memos issued over the past three weeks, media outlets are scrambling to keep up, and “experts” are jockeying for press and an opportunity to discuss the laws that govern the executive branch.

At FELTG, we’ve been teaching the law since 2001 – we have instructors who have been practicing it further back than that – and we want to caution you that before you rely on something you read in the media, be sure you vet the source.

To be clear, a lot of employment law experts are relaying accurate information during this crucial time. But just as many are not. Below are just a few of the myths we’ve encountered, with clarifications beneath.

MYTH: The ban on DEIA eliminates agency reasonable accommodation offices.

Clarification: Well, it shouldn’t and it better not, because the law requires agencies to provide the reasonable accommodation process to any employee or applicant who needs it. There has been some confusion, we think, because the “A” in DEIA stands for accessibility. OPM issued a memo on February 5 clarifying that agency RA programs and EEO complaint processes are not impacted by EOs 14148, 14151 and 14173.

The memo says, “[A]gencies should retain personnel, offices and procedures required by statute or regulation to counsel employees allegedly subjected to discrimination, receive discrimination complaints, collect demographic data, and process accommodation requests.”

MYTH: Administrative leave is always limited to 10 days per year.

Clarification: The Administrative Leave Act does indeed limit the use of administrative leave to 10 days per year. 5 U.S.C. 6329a. But OPM regulations, which were finalized in December 2024, clarified the 10-day limit applies only to agency investigations:

§ 630.1404 Calendar year limitation.

(a)    General. Under 5 U.S.C. 6329a(b), during any calendar year, an agency may place an employee on administrative leave for no more than 10 workdays. In this context, the term “place” refers to a management-initiated action to put an employee in administrative leave status, with or without the employee’s consent, for the purpose of conducting an investigation … The 10-workday annual limit does not apply to administrative leave for other purposes. After an employee has been placed on administrative leave in connection with such an investigation for 10 workdays, the agency may place the employee on investigative leave under subpart O of this part, if necessary (see 5 U.S.C. 6329b(b)(3)(A) and § 630.1504(a)(1))… (bold added)

Because the regulations are so new we don’t have any case law interpreting what “other purposes” might be covered. Historically, though, admin leave has been used for everything from voting to sending someone home after an accident in the workplace. We’ll likely soon learn whether the current large-scale administrative leave orders across some government agencies will meet the “other purposes” identified in the regs.

MYTH: A probationary employee can only be separated from service for performance or conduct reasons.

Clarification: As we’ve both written about and taught, probationary employees can be terminated quite easily (they must be given the reason in writing), and they have very limited appeal rights. 5 U.S.C. 7511(a)(1)(A)(i). Probationers are only afforded the right to appeal a termination to the Merit Systems Protection Board if their removal was based on:

  • Partisan political activity,
  • Marital status, or
  • Pre-appointment reasons.

See 5 C.F.R. 315.804-806; Starkey v. HUD, 2024 MSPB 6 (2024). Probationers also have the right to file a complaint with the Equal Employment Opportunity Commission if they believe they were terminated because of civil rights discrimination, and with the U.S. Office of Special Counsel if they believe they were terminated in violation of a prohibited personnel practice. So working backwards from the rights and corresponding case law, it appears any legitimate business-based reason for a probationary separation would afford a probationer no appeal rights. This is currently being tested as large swatch of probationary employees are being terminated from agencies, and unions are pursuing litigation over the terminations.

Also, I clarified this last week on a LinkedIn discussion: A supervisory probationary period is different from an initial appointment probationary period. If a supervisor happens to be in her initial appointment one-year period and also in her supervisory probationary period, then yes, she can be separated without due process (subject to those exceptions noted above). But the supervisory probationary period is different in that if an agency decides the supervisor is not a good fit in the role during the first year as a supervisor, the agency can return the supervisor to her previous, non-supervisory position or its equivalent, 5 C.F.R. 315.907(a). This does not give the agency a right to remove the supervisor, who has already successfully completed her probationary period, from service without due process.

Plenty more myths are circulating, with new ones almost every day, to stick with FELTG and we’ll help clarify during this very busy time. And if you have questions, please Ask FELTG. [email protected]

Upcoming Training on Executive Order Compliance

This article was updated with new information on wide-scale probationer terminations on February 14, 2025.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

The State of the Civil Service: 2025 Edition

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By Deborah J. Hopkins, January 15, 2025

Quick facts:

  • MSPB has almost eradicated the backlog of nearly 4,000 cases it inherited in 2022.
  • The EEOC’s priorities have recently been focused on updated anti-harassment guidance and enforcing PWFA regulations.
  • The FLRA is still awaiting a Senate-confirmed General Counsel, a position that hasn’t been permanently filled in nearly 8 years.
  • OSC had its busiest year ever, between cases filed and Hatch Act activity.

Welcome to 2025, FELTG readers. With a new administration arriving in less than a week, we know some significant changes are expected in the coming days. But where are we today?

For the first time in who knows how long, we have ZERO vacancies at the top of the MSPB or FLRA, plus we have a Senate-confirmed Special Counsel and only one vacancy at the commissioner level at EEOC.

Over the past couple of years, we have been fortunate to interview a number of the individuals at the top of these agencies, so please check out the associated links to learn more about them. Now, let’s take a closer look at the major oversight agencies.

Merit Systems Protection Board (MSPB)

It’s almost hard to believe that after over five years of waiting, a Board quorum was returned to us less than three years ago. Since March 2022, when the quorum was restored, Board members have worked tirelessly to clear out the inherited inventory of 3,793 petitions for review that languished while the Senate refused to vote on nominations for half a decade. As of this writing, there are just about 100 cases remaining in the backlog. Talk about progress!

As far as who’s who, the current Chair is Cathy Harris, the Vice Chair is Ray Limon (whose term expires March 1) and the third Member is Henry Kerner (who was sworn in last June). We anticipate President Trump will appoint Kerner as Chair in the coming weeks, and we’ll keep you posted on who is nominated to replace Limon after his term expires. Harris’s term doesn’t expire until 2028 and Kerner’s in 2030, so we anticipate stability to remain in the Board over the coming months unless something unprecedented happens.

The Board usually publishes a few interesting reports each year, but we didn’t see anything new in 2024. I suppose the tradeoff is clearing out the case inventory. Hopefully, we’ll see some noteworthy research in 2025.

Equal Employment Opportunity Commission (EEOC)

The current chair at EEOC is Charlotte Burrows, and the vice chair is Jocelyn Samuels. Andrea Lucas and Kalpana Kotagal are commissioners, and there is one vacancy available for the incoming President to fill. Most likely the titles of chair and vice chair will be shifted under the new administration, but we don’t expect the commissioners to go anywhere. Their terms are five years, and traditionally, they do not turn over with the various administrations.

EEOC’s focus in 2024 included two major topics:

  • Updated Enforcement Guidance on Harassment in the Workplace, the first all-encompassing guidance in 25 years.
  • Implementation of the final regulations on the Pregnant Workers Fairness Act, which became effective in June.

In December, EEOC released Federal workforce statistics from FY 2021. The number of formal EEO complaints filed (12,200) was the lowest in seven years. That said, Federal agencies also hit a seven-year high in the amount of money awarded during the complaint process: $74.5 million.

We’ll see what develops in the EEO world in the coming weeks as we anticipate the incoming administration’s philosophical shift away from the focus on Diversity, Equity, and Inclusion (DEI) in 2025.

Federal Labor Relations Authority (FLRA)

FLRA leadership consists of three political appointees; all three are currently occupied. Susan Tsui Grundmann is the chair, and Anne Wagner and Colleen Kiko are members.

While the top is fully populated, there is still not a confirmed General Counsel. President Biden has nominated multiple people for the role, but the Senate has not confirmed. We anticipate a new nominee in the coming months. The last time this position was officially filled with a non-acting GC was in 2017. As a result, there are at least 270 unfair labor practice (ULP) filings held in abeyance until a nominee is confirmed.

With union rights likely to be challenged in the coming weeks, the FLRA could be very, very busy in 2025.

U.S. Office of Special Counsel (OSC)

Hampton Dellinger was confirmed as the Special Counsel in February, and in his short time at the agency, he has been public about his desire to increase transparency in the agency. Ideas include, but are not limited to:

  • Posting publicly a summary of allegations in matters where the Special Counsel has determined that there is a “substantial likelihood” that the information discloses a violation of a law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, substantial and specific danger to public health and safety, or censorship related to research, analysis, or technical information and has referred the matter to the relevant agency.​
  • Posting publicly a summary of allegations in matters where OSC has issued a report concluding that a PPP has occurred or has advised an agency that OSC likely could establish the elements of a PPP. OSC will post the allegation to its website when the agency does not take corrective action in a timely fashion and the person making the allegation consents.

According to its FY 2024 report, OSC received 6,251 new cases, which is the highest in agency history – and a 45 percent increase over the average number of cases in FYs 2019-2023.

Because 2024 was an election year, the Hatch Act Unit was incredibly busy. OSC resolved 391 Hatch Act cases, a 40 percent increase from the last presidential election cycle. Check out FELTG’s recent interview with Hatch Act Unit Chief Ana Galinda-Marrone about other election-related trends in 2024.

That does it for now. We’ll keep you posted as new events unfold in Washington, DC, and around the country. Happy New Year, FELTG readers! I hope it’s your best one yet.  [email protected]

Related training:

Now is the Time: How Do Your Performance Standards Measure Up?

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By Deborah J. Hopkins, December 11, 2024

Quick facts:

  • The end of the year is a good time to review performance standards for clarity.
  • If performance standards are vague, an agency can clarify expectations either before or during the PIP.
  • If the agency writes backward standards, the Board will overturn a performance-based removal based on those standards.

With a new year coming, now is an excellent time for supervisors to look at their employees’ performance standards and review whether they might benefit from clarification. As I always say in my performance classes: “Poorly written performance standards aren’t really a problem if the work is getting done – but they quickly become a problem if an employee’s performance is unacceptable.”

If the work is getting done, many supervisors don’t really concern themselves with how the standards are written until it comes time for annual performance appraisals. And although the regs say that at any time the employee’s performance becomes unacceptable, the agency should address the situation by implementing a PIP (5 CFR § 432.104), poorly written standards too often serve as a roadblock to accountability.

Sometimes, the supervisor decides to hold the employee accountable (hooray!) but unfortunately misses an important step in the process. Consider Zepeda v. NRC, 2024 MSPB 14 (Oct. 20, 2024). The appellant was a special agent for the Nuclear Regulatory Commission’s Office of Investigations, and her supervisor put her on a PIP for three of her critical elements:

  • Planning and preparation for assigned investigations;
  • Conduct of investigations/assists to staff; and
  • Preparation of reports of investigation and assists to staff closure memoranda.

Id. at 2.

At the conclusion of the PIP, the agency removed her for failing all three elements. The MSPB AJ, who presided over the appeal, found the agency’s performance standards were invalid. The AJ reversed the removal, and the Board agreed. Here’s why:

  1. The agency had a 5-level rating system and did not define the “minimal” level of performance, which is considered acceptable performance under the law. Jackson-Francis v. OGE, 103 M.S.P.R. 183, ¶¶ 6-7 (2006). The appellant’s performance plan “only defined fully successful performance for each critical element; it did not define minimally successful performance that would have allowed the appellant to avoid removal…” Zepeda at 5.
  2. The agency did not clarify the employee’s performance standards during the PIP. As the Board noted, “[a]n agency may cure otherwise fatal defects in the development and communication of performance standards by communicating sufficient information regarding performance requirements at the beginning of, and even during, the PIP.” at 6, citing Henderson v. NASA, 116 M.S.P.R. 96 (2011). Had the agency clearly defined what was expected for level 2 performance at this point, the action may well have been sustained. However, this leads us to:
  3. The agency’s attempt to define level 2 performance contained invalid backwards standards. This is a too-common mistake where agencies, in an attempt to clarify expectations, describe the performance expectation as work that doesn’t get done rather than the level of work that’s required.

For example, on one of the appellant’s performance standards, on the subcomponent for the quantity of work completed, the agency informed her that minimally successful performance would be met if she completed “a less than expected quantity,” which according to the Board meant the appellant would be successful “by producing nothing at all.” Zepeda at 7. In other words, backward standards are impossible to fail because of the way they are written. Therefore, a removal for failing such a standard cannot withstand appeal.

OPM has a helpful guide to identifying backwards standards, and includes the following to assist:

To help you determine whether you are writing a backward retention standard, ask:

  • Does the standard express the level of work the supervisor wants to see, or does it describe negative performance? (Example of backward standard: Requires assistance more than 50% of the time.)
  • If the employee did nothing, would he/she meet the standard, as written? (Example of the backward standard: Completes fewer than four products per year.)

The problems … that backward retention standards cause rarely surface until it’s too late. To avoid problems, it is worth taking the time when first developing the retention standards to ensure they are not … backward.

There’s much more in the case we’ll consider in future articles. If this is an area that causes concern, consider bringing FELTG to your agency for a workshop-based approach to writing legally sufficient performance standards. [email protected]

Related training: