In a semi-recent case involving an employee’s request for a dog in the workplace, Dona A. v. SSA, EEOC No. 2022000745 (May 9, 2022), the complainant requested 15 accommodations, including that her dog be permitted to come to work with her. Let’s break it down.
Welcome to another year-end News Flash, where we reveal the two most popular FELTG newsletter stories (based on the number of reads and forwards) for each month of 2023. Let’s dive in.
By Deborah Hopkins, December 4, 2023
As December rolls along, many of you will be attending or participating in holiday parties or gift exchanges. To kick off the
holiday theme of this month’s newsletter, I wanted to share three lessons about employee (mis)conduct related to the holidays.
Inappropriate use of a photo taken at a Christmas party was “abusive and offensive.”
The appellant, an M-5 supervisor at the Tennessee Valley Authority, was suspended on multiple charges. One charge included showing a female subordinate employee an inappropriate photograph. The photograph was taken of the subordinate, without her knowledge, during a Christmas party. That was only part of the problem. The appellant then took the subordinate’s head from the photo and attached it to a centerfold picture of the body of a naked woman, and showed the photo to the appellant, who testified that she was humiliated and embarrassed by the incident. MSPB held that this incident, along with others discussed in the case, amounted to “a course of abusive and offensive behavior which, if directed in large part to female employees, is discriminatory.” Hayes v. TVA, 4 MSPR 411, 414 (Dec. 16, 1980).
A Christmas gag gift can amount to disrespectful conduct.
The appellant, a WG-9 painter at the Department of Veterans Affairs, brought a red Huggies box to work and placed it on his supervisor’s workstation. The box contained what appeared to be a soiled diaper. The agency drafted the following charge:
On January 5, 2012, three individuals saw you put a red Huggies diaper box on the desk of Supervisor Mark Treadway. The box contained a baby diaper that looked like it had feces in it. According to the witnesses, you made the following statements, “Do you think this would make Mark mad” and “I hope it does.”
The “feces” was actually a candy bar that had been made to look like feces. The appellant testified it was a Christmas gag gift he had received from his mother and his sister, although witnesses did not corroborate that statement.
The supervisor was troubled with what he found at his workstation. He thought the feces was real. He called the agency’s Infectious Disease team to dispose of the box. The Administrative Judge found the appellant’s behavior amounted to disrespectful conduct. Franklin v. VA, AT-0752-12-0454-I-1 (Jul. 23, 2012)(ID).
The Whistleblower Protection Act does not protect disclosures based on rumors of events at holiday parties.
In this case, the appellant, a GS-12 correctional program specialist/special investigative agent at the Federal Bureau of Prisons, asserted he heard a rumor from other employees that there had been a fight during the institution’s holiday party, which he had not attended. He reported the rumor, which included an allegation that the associate warden had been involved in the altercation, to the agency’s executive staff. When he was disciplined for conducting an unauthorized investigation, misuse of position, and lack of candor, he claimed whistleblower reprisal, but the MSPB found the disclosure was not protected because “when the appellant made the disclosure, it was based on mere rumors, and he did not even know who allegedly had been involved.” Johnson v. DOJ, 2007 MSPB 42, P14 (Feb. 6, 2007).
Have a wonderful holiday season, FELTG readers, and let’s all remember to make good decisions out there. [email protected]
Related training
By Ann Boehm, December 4, 2023
Dear Santa:
I hope you’ve had a wonderful 2023. Are the elves pushing for a hybrid environment? I hope the reindeer are not working remotely! Especially not on December 24, because that would be a real problem!
My year has gone well. I have done more in-person training this year, which is fun. Remote still works too.
I have been behaving. But Congress – not so much. More on that in a second.
I am working hard on writing efficiently and effectively, so I am going to put my requested Christmas items in order of importance.
- A pony.
I really feel like it’s only a matter of time until a pony appears at my house on Christmas!
- A budget from Congress.
Actually, several budgets are needed in 2024. Some need to pass in January. Some need to pass in February. And, oh yeah, how about a budget by September 30 for a change? (I realize this one may be tougher than the pony.) Please don’t let the naughty behavior of the Members of Congress hurt the good Federal employees who are tired of budget deadline drama.
- Revision of all collective bargaining agreements (CBAs) that have Performance Improvement Plans (PIPs) lasting more than 30 days. (I am really asking for a lot this year. I know that!)
I feel sad when I see a CBA with a 90-day PIP. If 30 days works for the Merit Systems Protection Board, why should CBAs ever require more than 30-day PIPs? Help the unions understand this, please!
- Hatch Act compliance by all Federal employees.
It’s a big election year. And it’s going to be ugly. Federal employees need to remember that the Hatch Act prevents certain political activities, because they work in a merit system. The Office of Special Counsel will send out lots of guidance. Read it! For the good of the public, Federal employees need to abide by the Hatch Act’s requirements.
- Effective communication in the workplace.
Please help managers communicate effectively with employees, and employees voice appropriate concerns to managers. Also, help managers be aware they need to inform advisors about problem employees as soon as they sense a problem. And advisors need to listen to the managers’ concerns and do their best to help – not just provide a knee-jerk “no, we can’t do that” reaction.
Santa, I said that my list was in order of importance, but then I realized what I really want for Christmas. Please help the candidates for President, members of Congress, the media, and the public appreciate the hard work and truly public service provided by Federal employees. There are so many amazing people working in many different capacities in our Federal agencies. With the exception of a few bad eggs (that we at FELTG try to help managers and advisors handle appropriately), we have an amazing Federal workforce! And you know what Santa – that’s Good News.
Merry Christmas! Happy New Year! [email protected]
By Frank Ferreri, December 4, 2023
It’s that time of year again. Office workers across the world, including the Federal government, will soon bring merriment to their cubicles, quads, and corridors with lights, snowpersons, trees, and other indicia of “the season.”
While some Yuletide cheer is appropriate, welcome, and legally acceptable around the holidays, getting too zealous in workplace decorations can earn more than a lump of Title VII coal from the EEOC or a court.
In terms of what the law requires, whether harassment on the basis of religion is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Systems, 510 U.S. 17 (1993).
To establish a case of hostile environment harassment on the basis of religion, as detailed in Humphrey v. USPS, EEOC App. No. 01965238 (Oct. 16, 1998), a complainant must show all of the following:
- She was a member of a statutorily protected class (here, religion).
- She was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class.
- The harassment complained of was based on the statutorily protected class.
- The harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment.
These EEOC and court decisions provide guidance to ensure the holidays are merry, bright, and nondiscriminatory.
Decision: Sturman v. FAA, EEOC App. No. 0120072361 (Oct. 31, 2007).
Facts: An air traffic control specialist claimed he was discriminated against on the basis of religion (Jewish) when a facility manager allowed her staff to hang Christmas decorations during business hours but did not hang Chanukah decorations. Staff also downloaded Christmas songs to her computer during business hours. The specialist submitted pictures of a workplace with a Christmas tree, a Christmas wreath, garland, lights, and other Christmas holiday decorations.
Ruling/analysis: The specialist’s case “failed” on the question of whether the atmosphere at work had the purpose or effect of unreasonably interfering with the work environment.
The EEOC noted the decorations — a Christmas tree, wreath, icicle lights, garland, and Santa Claus — were “predominantly secular” in nature. Although the tree “seemed to have had a number of ornaments which featured an angel,” the overall display was not religious, since “there was not a nativity scene, nor was there any other decoration which was religious in nature.”
The EEOC also noted that although Christmas trees are commonly associated with the Christian holiday of Christmas, “it has become a prevalent practice for many people and businesses to decorate evergreen trees, and feature lights and garland, as an expression of ‘the winter holiday spirit’ in a very secular sense.”
* * *
Decision: Garry H. v. FAA, EEOC App. No. 0120181570 (Sept. 24, 2019).
Facts: In one of six sections of a control room, an air traffic control specialist’s coworker put up a sign that read “Happy Hanukkah,” a silver and blue garland along with stars of David on the lights; a sign that read “Happy Kwanza” [sic]; and a sign that said, “Santa is coming in [x number] of days,” along with Christmas lights and wrapping paper.
The specialist claimed the agency discriminated against him on the basis of religion (Jewish) when all non-Christmas decorations were taken down while Christmas decorations throughout the facility stayed up.
Ruling/analysis: The specialist did not prove the agency subjected him to discrimination. The decorations the specialist complained about were secular decorations that were permitted throughout the Federal government and work environment.
“The record shows the holiday decorations … consisted of a sign that said, ‘Santa Clause [sic] is coming in [x number] of days,’ Christmas lights and wrapping paper,” the EEOC wrote. “According to the U.S. Supreme Court, such holiday decorations amount to secular symbols rather than an expression of a religion and displaying them in the federal workplace does not violate the establishment clause of the First Amendment.”
The EEOC also explained that Tile VII does not require a public or private employer to remove holiday decorations or add holiday decorations associated with other religions.
* * *
Decision: Ian S. v. IRS, EEOC App. No. 0120160622 (Apr. 27, 2018).
Facts: A senior individual taxpayer advisory specialist alleged that the agency discriminated against him on the basis of religion (Jehovah’s Witness) when his manager would not allow him to eat at his desk so that he could avoid exposure to holiday decorations in the break room, where a tablecloth and two poinsettias offended his religious beliefs.
Ruling/analysis: The holiday decorations at issue amounted to secular symbols rather than an expression of a religion, and displaying them in the federal workplace did not violate the establishment clause of the First Amendment.
* * *
Decision: Moore v. AAFES, EEOC App. No. 01933575 (Mar. 16, 1994).
Facts: A warehouse worker alleged he was discriminated against on the basis of religion (non-Christian) when Christmas music was played over the public address system where he worked.
Ruling/analysis: Even if the worker could prove that there was a deliberate intent on the part of the agency to harass him by playing Christmas music, it still would not rise to the level necessary to prove discrimination. This was because the harassing music complained of was played only on two days and for relatively brief periods of time.
* * *
Decision: Lurensky v. FERC, 167 F. Supp. 3d 1 (D.D.C. 2016).
Facts: The employee, who was a Jewish woman in her 60s, alleged the agency subjected her to disability discrimination when it denied the employee’s request to remove a Christmas garland off of a handrail in the lobby of the building where she worked.
Ruling/analysis: “Though a Christmas garland may have annoyed or inconvenienced the plaintiff, this allegation … fails to state a claim for discrimination or retaliation because it does not amount to an adverse employment action,” the court reasoned, since the garland did not affect the terms of employment and the decision to leave it in place was “not sufficiently adverse to chill a complainant’s exercise of her rights.”
* * *
Decision: Plotkin v. Shalala, 88 F. Supp. 2d 1 (D.D.C. 2000).
Facts: An HHS scientist, who was Jewish, complained about the display of “Christian Christmas decorations” in the workplace prior to being terminated.
Ruling/analysis: The employee’s concession that she was dismissed because of her alleged conduct and that her employer’s decision to terminate her employment was made before she voiced her concerns about the office Christmas decorations “effectively dispose[d] of” her claim of religious discrimination.
* * *
Decision: Spohn v. DVA, 2000 WL 1459981 (S.D.N.Y. 2000).
Facts: A VA employee, who was Catholic, alleged the agency violated his rights by displaying symbols of the Jewish religion, but not the Christian religion, in public areas of the hospital during two December holiday seasons. It appeared that “menorahs were displayed along with toy soldiers, Christmas trees, and Santa Clauses,” which the employee considered secular symbols, as well as “posters celebrating Kwanza” [sic] and “signs mentioning Muslim prayer services.”
The employee sought to have the court order a nativity be added to the VA’s decorations.
Ruling/analysis: Because the employee did not allege specific facts about the holiday displays, the claim was dismissed. However, along the way, the court noted that holiday displays including religious as well as secular symbols of the holiday season have been upheld but displays of religious symbols standing alone in locations associated with core governmental functions have been struck down.
The court also explained that while the agency could not be prohibited from displaying a creche in addition to a menorah in an “appropriate setting,” there was no authority for the proposition that such a pairing was constitutionally required.
“This Court cannot order the Center to include a creche in its holiday display,” the court pointed out. In addition, citing County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989), the court highlighted that “Chanukah, like Christmas, is a cultural event as well as a religious holiday” in that “[j]ust as some Americans celebrate Christmas without regard to its religious significance, some nonreligious American Jews celebrate Chanukah as an expression of ethnic identity, and ‘as a cultural or national event, rather than as a specifically religious event.’”
What’s the takeaway from cases like these? A workplace that stays secular and celebrates the “American cultural” version of the holidays in its decorations will keep the season jolly and away from Title VII troubles. But for everyone’s sake, leave Mariah Carey in the earbuds. [email protected]
December 4, 2023
This question came into the Ask FELTG mailbag: I know there are prohibitions on gift-giving when it involves Federal employees, but are there any restrictions on gift-giving if two people who are friends also happen to be Federal employees
The source for all things gift-related is 5 CFR Part 2635, and Subpart C specifically relates to Gifts Between Employees. The main area of concern involves gift-giving when there’s a supervisor-subordinate relationship, and/or a discrepancy in pay. According to § 2635.302, an employee may not — directly or indirectly — accept a gift from an employee receiving less pay than himself unless:
- The two employees are not in a subordinate-official superior relationship; and
- There is a personal relationship between the two employees that would justify the gift.
Unless the friends work for the same agency, and one was the superior of the other, there is probably not an ethical concern about gift-giving if there are no ulterior motives.
If the two of you work for the same agency and there’s a superior-subordinate relationship, you’ll probably want to check with your agency’s Ethics office or Office of General Counsel if you have any concerns. [email protected]
Have a question? Ask FELTG.
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.
This week, our focus turns to claims of religious discrimination from another angle – reasonable accommodation. Read more.
By Deborah J. Hopkins, November 13, 2023
Religious persecution is on many people’s minds today. With polarizing events happening around the world, most notably the Israel-Hamas war, it’s important for Federal employees to remember this: While they may have strong feelings related to religious beliefs and practices, there are limits on workplace conduct that, if exceeded, could give rise to discrimination complaints on the basis of religion.
As a quick statutory overview, Title VII, 42 USC § 2000e-16, provides that in the Federal government, “all personnel actions affecting employees or applicants for employment … shall be made free from discrimination based on … religion …” This statute was made applicable to Federal agencies by the Rehabilitation Act in 1972.
In addition, EEOC makes it clear that “Title VII defines ‘religion’ to include ‘all aspects of religious observance and practice as well as belief.’ Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, and only subscribed to by a small number of people, or that seem illogical or unreasonable to others. . .” EEOC Compliance Manual Section 12-I, A-1.
A browse through EEOC case law shows us that discrimination based on religion has been implicated in every theory of discrimination. Today, we’ll be focusing on cases involving hostile work environment harassment.
Wicca wasn’t welcome.
The complainant, an electronic technician, filed a hostile environment complaint based in part on his religion (Wicca). According to the case, agency supervisors “restricted him from wearing his religious shirts, jewelry” and displaying “a small cauldron” even though similar restrictions were not placed on employees of other religions. In addition, an agency supervisor counseled the complainant that he should refrain from being so open about his religious beliefs.
The complainant’s co-workers also openly chastised his religious expressions, referring to his religion as “going out East to frolic with the nymphs” and calling him “evil.” EEOC found the agency liable for hostile environment harassment and remanded the case for a damages assessment. Hurston v. USPS, EEOC App. No. 01986458 (Jan. 19, 2001).
Muslims were expected to behave in a certain way.
The complainant, a housekeeping aide, alleged religious discrimination based on his Muslim faith when among other things:
- His supervisors made comments such as “Why don’t you act like a Muslim?” and “Where is your beanie (kufee)?” [sic].
- His direct supervisor once handed him a computer disk labeled “get Osama.”
- His co-workers brought in pictures of the President and the Statue of Liberty wearing disparaging Muslim garb.
- He received approximately 25-30 letters of warning.
When assessing the severity and pervasiveness of the conduct, EEOC noted that the harassment began on Sept. 12, 2001, and continued for several weeks thereafter. It found the agency liable for a hostile work environment. Watson v. Dep’t of Veterans Affairs, EEOC Nos. 01A50731, 01A52680 (2006).
Disparaging comments were made about Islam.
The complainant, a center adjudication officer at the Federal Law Enforcement Training Center (FLETC), was attending a seven-week staff training course at FLETC’s Glynco, Ga., campus. The class instructor made disparaging remarks about Muslims and Arabic people to the class and provided factually inaccurate information about the Islamic faith and Arabic people.
In addition, the instructor told the class, “The goal of a Muslim is to convert you and kill you.” Another instructor told the class the complainant should be “investigated for possible ties to terrorist organizations.” This was so troubling that other classmates who weren’t Muslim or Arabic were uncomfortable and filed reports. EEOC agreed that this conduct created a hostile work environment. Rana v. Dep’t of Homeland Security, EEOC App. No. 0720060056 (Jan. 5, 2007).
One offensive comment constituted unlawful antisemitic harassment.
The complainant, a workers’ compensation claims examiner, received an email from her supervisor in which the supervisor referred to himself as working like “a Hebrew slave.” The complainant filed a hostile environment harassment complaint.
The agency maintained the supervisor’s comment was not severe enough to constitute a hostile work environment because he applied the term to himself. EEOC disagreed and found that, although it was a one-time comment, such language made light of the history of Jewish persecution and genocide and it reminded the complainant about her family’s treatment during the Holocaust, where several of her family members had been killed. EEOC agreed with the AJ, who determined that this comment to a Jewish subordinate was “grossly insensitive, insulting and condescending,” “profoundly inappropriate,” and was severe enough to alter the terms, conditions, and privileges of employment. Lashawna C. v. Dep’t of Labor, EEOC App. No. 0720160020 (Feb. 10, 2017).
Newspaper photo with comments was not a hostile work environment.
Not every case of unwelcome conduct based on religion will meet the bar to prove a hostile work environment. Take, for example, the recent case Kenny M. v. Dep’t of Justice (Bureau of Prisons), EEOC App. No. 2022000449 (Dec. 6, 2022). The complainant, a cook supervisor at a Federal penitentiary, alleged a hostile work environment on the basis of religion (Judaism).
From November 2018 through December 2019, a newspaper article containing a photo of the U.S. attorney general speaking with a man in a black hat was posted in the bathroom with the captions: “The AG and a Jew meet at a gay disco party” and “Who blows Who.” The EEOC found the incident was not sufficiently severe or pervasive to alter the terms, conditions, or privileges of the complainant’s employment. “The anti-discrimination statutes are not civility codes. Rather, they forbid ‘only behavior so objectively offensive as to alter the conditions of the victim’s employment.’” Id., citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (Mar. 4, 1998).
I’ll write more about religious discrimination next month. [email protected]
By Ann Boehm, November 13, 2023
Time, once again, to talk about Santos v. NASA, 990 F.3d 1355 (Fed. Cir. 2021) – the universally disliked Federal Circuit case that changed 40 years of MSPB case precedent. Because of Santos, agencies must provi de substantial evidence of unacceptable performance before implementing a performance improvement plan (PIP).
Among the problems with Santos is the fact that the Federal Circuit did not say anything about how agencies are to show substantial evidence of unacceptable performance that occurred before the PIP began. Nothing. Nada. The MSPB has not really done much to help with this conundrum either.
FELTG founder Bill Wiley wrote a great article in April about how agencies should proceed post-Santos. Providing what he described as “admittedly legally conservative FELTG advice to Federal employment law practitioners,” Bill provided these steps to follow:
- Make sure the employee has been given performance standards (with critical elements identified) and has had at least a couple of months to get used to them.
- Collect evidence of mistakes the employee has made recently that demonstrate he is performing unacceptably under at least one of his critical elements.
- Incorporate reference to these mistakes in the PIP initiation memo. The supervisor should retain evidence of the mistakes but does not have to provide that evidence to the employee at this time. However, if you want to give this list to the employee, we recommend attaching it to the end of the PIP initiation so as not to start off on a negative and put the employee on the defensive.
Simple enough, right? So why am I revisiting the Santos requirement just a few months later? Because agencies are overcomplicating things! During a recent training event, a frustrated supervisor explained that agency counsel wanted to conduct a pre-PIP before instituting a PIP, because counsel was afraid of Santos. Arghhh.
Please do not overcomplicate things, my friends! Stick with logic. Stick to simple. There’s no case law from the MSPB or Federal Circuit indicating a pre-PIP is necessary to satisfy Santos.
Even with Santos, I still believe that the performance removal process can be the easiest way to remove a problem employee. But not if agencies go to illogical extremes because of risk aversion.
With Santos, you just have to provide some evidence of poor performance before you initiate the PIP. And only substantial evidence of that poor performance. Try Bill’s “admittedly legally conservative” way. It’s what we teach here at FELTG.
And if you believe us, here’s the Good News – you don’t have to over-Santos Santos! [email protected]
