Good News: Hostile Work Environment is Harder to Prove Than You Think

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By Ann Boehm August 14, 2023

A “hostile work environment” as a form of discrimination has been prohibited since the 1980s.  The Equal Employment Commission’s guidance and regulations on what constitutes sexual harassment, from the 1980s through now, describe illegal harassment as conduct that creates an “intimidating, hostile, or offensive working environment.” 29 C.F.R. 1604.11(a)(3). The EEOC’s guidance on harassment based upon any of the protected statuses (race, color, religion, sex, national origin, age, disability, or genetic information) uses similar descriptive terms—to be unlawful, the conduct would be considered “intimidating, hostile, or abusive.” https://www.eeoc.gov/harassment

Although “intimidating,” “offensive,” and “abusive” are used along with “hostile” to describe illegal harassment, the phrase that has stuck in the lexicon as prohibited harassment is “hostile work environment.” Yes, folks, we talk about an “HWE,” not an “IWE” or “OWE” or “AWE.” Unfortunately, I think the word “hostile” lends itself to being misinterpreted by many, many employees.

The Merriam-Webster online dictionary defines “hostile” as “of or relating to an enemy; marked by malevolence; having or showing unfriendly feelings; openly opposed or resisting; not hospitable.” Employees focus on the word “hostile” and think any slight in the workplace is a hostile work environment.

Based upon the dictionary definition of “hostile,” that makes sense. But this definition is very different from what is considered a “hostile work environment” under the EEO laws.

EEO practitioners know that to establish a discriminatory “hostile work environment,” an employee first must show physical or verbal conduct. Second, that conduct must be unwelcome and based upon the employee’s protected status. Third, the conduct must be so severe or pervasive as to alter the terms, conditions, or privileges of employment.

Employees know that they are protected from a “hostile work environment” under the EEO laws, but they often stop with the word “hostile” and fail to understand the requirements of what is legally a “hostile work environment.” Being asked to do an assignment the employee does not like is not a “hostile work environment.” A supervisor failing to say good morning is not a “hostile work environment.” Being given a low performance rating based upon legitimate performance concerns is not a “hostile work environment.”

[Editor’s note: Hostile work environment will be covered along with numerous other EEO issues during EEOC Law Week Sept. 25-29. Register now.]

I could go on and on. The perception among too many employees is that any perceived wrong by a supervisor is a “hostile work environment.”

Don’t get me wrong. Illegal harassment still happens far too often, and it is not acceptable. I just feel that the frivolous or non-meritorious complaints get in the way of the legitimate ones.

Employees have the right to complain about perceived discrimination. But it is unfortunate that they do not understand what an EEO hostile work environment is. Would it be a better world if we used “offensive work environment” instead of “hostile?” Perhaps. We are stuck with “hostile,” though.

How do we fix this? First thing – educate. Training can help. If an employee starts the EEO process, EEO counselors can educate them on what must be proven in a hostile work environment case. Mediators, judges, and counsel involved in the EEO process can all educate too.

Education may not rid us of wrong-intentioned hostile work environment complaints, but it may help. For those complaints that are not resolved, agencies need to have the fortitude to litigate the hostile work environment cases and ensure the legal requirements of a discriminatory hostile work environment are properly analyzed. What an employee perceives is “hostile” is not necessarily illegal harassment.

As I learned from an EEOC judge years ago, employees prevail on EEO complaints at a pretty low rate. But in 100 percent of the cases, the employee is upset about something. We are stuck with the word “hostile.” But what legally constitutes a “hostile work environment” is more than just a supervisor showing unfriendly feelings. Agencies can prevail in those cases. And that’s Good News. [email protected]

What Came First: The Appointment or the Reason for Termination?

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By Barbara Haga, August 14, 2023

[Editor’s note: This is the third in a series of articles on excepted service, trial periods, and appeal rights. Read Barbara’s first two articles here and here.]

This month, we look at even more distinctions between probationary period appeal rights and those of excepted employees. Practitioners need to ensure they have considered these distinctions when taking a termination action.

5 CFR 315 makes a distinction in processing the termination of probationary employees for reasons prior to the appointment (such as falsification of a resume or failure to disclose information on employment documents) and reasons that arose after employment (such as unsatisfactory performance or failure to follow conduct rules on the job).  If the agency does not follow the proper set of procedures for the pre-appointment actions, the Board will have jurisdiction to review the process by which termination took place, not the substance of the reasons why the action was taken.

These determinations sometimes seem like “chicken and egg” situations. In Rivera v. Navy, 114 MSPR 52 (2010), the employee failed to qualify for a credit card. Without a credit card, he was unable to attend the extensive training required for his police officer position. Rivera argued that the prior credit issues before his employment led to the denial of the credit card. Thus, he should have been given notice and a right to respond as required by 5 CFR 315.806. The Board wrote, “there is a distinction between a preexisting condition and the effect that condition has on an employee’s performance during his probationary period.”  In this case, the Board found that while not qualifying for the credit card was attributable to pre-employment conditions, Rivera was actually terminated for a post-appointment deficiency.

The good news is that there is no such consideration for termination of most excepted employees.  There’s no differentiation between pre- or post-appointment terminations notice requirements.

Marital status and partisan politics

5 CFR 315.806(b) provides that a probationary employee may appeal a termination alleged to be based on partisan political reasons or marital status. Appeals on this basis do not extend to excepted employees except as discussed below with appointments that convert to competitive service.  See Allen v. Navy, 102 MSPR 302 (2006). In several cases, the Board has noted that agencies have provided misinformation in their termination notices indicating that employees could appeal on these bases. See Barrand v. Department of Veterans Affairs, 112 MSPR 210 (2009); Ramirez-Evans v. Department of Veterans Affairs, 113 MSPR 297 (2010).

5 USC 75l1(a)(1)(C)(i) excludes from the definition of “employee” those (other than preference eligibles) in the excepted service serving a probationary or trial period under an initial appointment pending conversion to the competitive service.

Because these are competitive positions occupied by excepted employees, OPM has issued regulations explicitly providing competitive-type provisions to these employees.  5 CFR 307.105 states:

Individuals serving under VRAs have the same appeal rights as excepted service employees under parts 432 and 752 of this chapter. In addition, as established in § 315.806 of this chapter, any individual serving under a VRA, whose employment under the appointment is terminated within 1 year after the date of such appointment, has the same right to appeal that termination as a career or career-conditional employee has during the first year of employment.

Given this, a VRA appointee, just like a career or career-conditional employee, may appeal his probationary period termination to the Board if he alleges his termination was based on partisan political reasons or marital status, or that his termination for pre-appointment conditions was procedurally deficient.

In LeMaster v. Department of Veterans Affairs, 123 MSPR 453 (2016), a probationary employee was terminated based on his failure to disclose a 2007 court-ordered probation agreement following his release from prison for bank fraud.  The terms of the agreement meant that he was required to inform any employer or prospective employer of his current conviction and supervision status. The agreement also prohibited him from possessing or using a computer with access to any online service without the prior written approval of the court.

The VA’s position was he was terminated for post-appointment misconduct for failing to disclose the probation agreement. The termination also noted his inability to use the agency’s computer system prevented him from performing his job duties.

The AJ dismissed the case for lack of jurisdiction. Unfortunately for the VA, the Board had a different view. It found LeMaster’s termination was based, at least in part, on pre-appointment reasons, and he was, therefore, entitled to notice and a right to respond as required by in 5 CFR 315.805.

Following that same logic, the Board found a due process violation in Taylor v. Navy, 124 MSPR 111 (2017). Taylor was hired by the Navy as a police officer in February 2016 under a VRA appointment with a two-year trial period. The position required her to possess a firearm.  The Navy terminated her in May 2016 after they learned that a February 2016 protective order stemming from domestic violence allegations prevented her from possessing a firearm.  The Navy did not give notice or provide an opportunity for Taylor to respond.

The AJ found there was no Board jurisdiction in the case. Again, the Board came to a different conclusion. The Board stated:

“Because the termination action was at least partially based on the February 3, 2016, protective order, which arose before her February 8, 2016, appointment, the appellant was entitled to the procedural protections of 5 C.F.R. § 315.805.”

The Board remanded the case and asked the AJ to determine if there had been a harmful error committed.

If confronted with one of these “chicken and egg” type terminations, you can save yourself a lot of grief by giving advance notice and allowing the person to respond before you issue a decision.  There is no mandatory timeframe for notice for this, so it could be very quick.  That way, if the AJ or the Board determines that there are pre-appointment reasons included in your termination, you’ve satisfied the regulatory requirement.

When Emotional Stress Can (and Can’t) Support a Workers Comp Claim

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By Frank Ferreri, August 14, 2023

Unless you’re one of a few lucky workers, chances are that, at times, work brings a little stress into your life.

While some workplace angst and frustration is a normal part of life, there are times when it becomes so severe that, under the Federal Employees’ Compensation Act, emotional stress constitutes a compensable injury.

Just how much stress does it take to support a workers’ compensation claim? To establish an emotional condition in the performance of duty, a claimant must submit:

  • Factual evidence identifying an employment factor or incident alleged to have caused or contributed to her claimed emotional condition.
  • Medical evidence establishing that she has a diagnosed emotional or psychiatric disorder.
  • Rationalized medical opinion evidence establishing that the accepted compensable employment factors are causally related to the diagnosed emotional condition.

But, as the Employees’ Compensation Appeals Board explained in Lillian Cutler, 28 ECAB 125 (1976), when an injury or illness results from an employee’s feelings of job insecurity, fear of a reduction-in-force or her frustration from not being permitted to work in a particular environment, unhappiness with doing work, or frustration in not being given the work desired, or not holding a particular position, the injury or illness falls outside FECA’s coverage because it is found not to have arisen out of employment.

To get a sense of where ECAB currently stands on the issue, let’s break down some recent cases that address when stress turns into an occupational disease for Federal workers, and when it doesn’t.

C.R. and U.S. Postal Service, No. 21-0463 (ECAB April 28, 2023)

Alleged injury: A 46-year-old postmaster alleged that work stress caused him to develop kidney failure and suffer a minor stroke. The Office of Workers’ Compensation Programs denied the claim, finding the evidence was insufficient to establish a compensable employment factor.

Holding: ECAB sent the case back to OWCP, finding the postmaster established several employment factors, including:

  • Addressing problems with hiring and maintaining adequate staff.
  • Removing equipment from workspaces.
  • Securing adequate areas to carry out work functions.
  • Managing paperwork for posting and cutting mail delivery routes.
  • Keeping workspaces in safe, clean, and comfortable physical condition.
  • Addressing high work volume and deadlines, particularly with regard to handling Amazon mail.

However, ECAB found that to succeed on remand, the postmaster would need to submit rationalized medical evidence by a qualified physician and/or clinical psychologist establishing that he had a diagnosed condition causally related to an accepted compensable employment factor.

J.H. and Department of Homeland Security, No. 22-1086 (ECAB April 17, 2023)

Alleged injury: A 35-year-old law enforcement agent alleged he developed anxiety and stress due to a significant amount of physical and emotional stress within the work environment, which caused him to seek treatment. OWCP denied the claim, finding the agent had not established any compensable employment factors.

Holding: ECAB found OWCP improperly denied the agent’s request for reconsideration because he submitted evidence that:

  • Management placed him in AWOL status even though he had previously apprised them of his absence.
  • A supervisor admonished him but not others for addressing her by her first name.
  • Management denied his request for a change in shift to facilitate his training.
  • He was required to furnish medical documentation for all of his medical appointments when his coworkers were not required to do so.

ECAB remanded the case to OWCP.

B.T. and Department of Defense, Defense Commissary Agency, No. 20-1627 (ECAB January 11, 2023)

Alleged injury: A 32-year-old sales store checker, who was diagnosed with service-connected post-traumatic stress disorder, alleged she experienced undue stress and anxiety due to factors of her employment, related to, among other things, constant badgering, schedule changes, pettiness, micromanagement, and unprofessionalism. OWCP denied the claim, finding insufficient evidence that the checker’s medical condition arose during the course of employment and within the scope of compensable work factors.

Holding: The checker did not establish an emotional condition in the performance of duty because she did not submit evidence supporting her allegation she was overworked. Additionally, the checker’s allegations regarding the assignment of work and modification of work schedule, denial of her request for reasonable accommodation, termination of her federal service, the handling of leave requests and attendance matters, disciplinary matters, requests for medical documentation, and the filing of grievances and EEO complaints related to administrative or personnel management actions, and mere dislike or disagreement with certain supervisory actions would not be compensable absent error or abuse on the part of the supervisor.

Similarly, ECAB found that the checker’s allegations of harassment were “mere perceptions” and not compensable under FECA.

W.J. and U.S. Postal Service, No. 20-1226 (ECAB January 6, 2023)

Alleged injury: A 57-year-old letter carrier alleged he developed anxiety, depression, and a sleep disorder due to factors of his Federal employment. He asserted that multiple managerial changes created a hostile workplace where he encountered disparaging remarks and constant humiliation and harassment over work methods. OWCP denied the claim.

Holding:  The carrier established overwork as a compensable factor of employment based on:

  • Multiple instances where management confronted him, questioned his time estimates, and the validity of his employment injury and instructed him to ignore his work restrictions to complete his route for that day.
  • Management would complain about not having enough coverage and ask the carrier complete his work without assistance.
  • The carrier was asked on multiple occasions to work multiple routes due to an understaffing issue.
  • The carrier worked auxiliary time for various reasons despite multiple Form CA-17s suggesting that he only work for eight hours.

The carrier also established compensable employment factors with respect to allegations of harassment based partly on an incident in which the carrier’s supervisor stressed him out to the point where he had an anxiety attack and was unable to complete his work for the day.

ECAB remanded the case to OWCP.

P.G. and U.S. Postal Service, No. 22-0259 (ECAB January 5, 2023)

Alleged injury: A 51-year-old rural carrier alleged that she developed post-traumatic stress order due to factors of her federal employment, including ongoing harassment by a coworker that was alleged to have included obscene hand gestures, getting in the carrier’s face and saying something that could not be understood, and approaching the carrier and saying, “When I talked to you about the hen house and you got me in trouble … what I was talking about were chickens.” OWCP denied the claim.

Holding: The carrier established a compensable employment factor, and OWCP did not review the medical evidence. “Verbal altercations and difficult relationships with coworkers, when sufficiently detailed and supported by the record, may constitute compensable factors of employment,” ECAB wrote in remanding the case to OWCP.

Next month, we’ll look at five more cases. [email protected]

 

The Marijuana Conundrum: Illegal Federally, But Legal in Many States

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Marijuana is still a Federally controlled substance and Federal employees are prohibited from purchasing, possessing, using or distributing it in any form. A recent MSPB case highlighted this exact conduct. Read more.

Read more

In Case You Need Another Reason to NOT Issue a Letter of Counseling

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A new NP MSPB case, Petoskey v. VA, SF-3443-16-0808-I-1 (Jun. 21, 2023), has once again affirmed why letters of counseling, caution, warning, and the like are just not worth your time. Read more.

Read more

A Big Change for Undue Hardship in Religious Accommodation … or Not?

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By Deborah J. Hopkins, July 18, 2023

On June 29, the Supreme Court upended decades of precedent in its unanimous decision Groff v. DeJoy, No. 22–174 (Jun. 29, 2023).

Under Title VII, employers are required to accommodate the sincerely held religious beliefs or practices of employees unless doing so would cause an “undue hardship” on the employer. For years, the definition of “undue hardship” for religious accommodation has been “anything more than a de minimis burden,” which is a much lower threshold than proving undue hardship for the purposes of disability accommodation – and, quite recently, pregnancy accommodation.

The new SCOTUS case looked at a USPS mail carrier, Gerald Groff, who requested to be excused from work on Sundays because his religious beliefs required that day to “be devoted to worship and rest.” The agency required Sunday work because of a new partnership with Amazon.

The agency said granting Groff Sundays off would be more than a de minimis burden on his coworkers’ schedules. Also, it would require the USPS to pay overtime, which would be an undue hardship on the agency. After being disciplined for refusing to work on Sundays as ordered, Groff resigned. He filed a failure-to-accommodate religious accommodation claim against USPS.

From the SCOTUS syllabus [PDF]:

Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business.” §2000e(j). Impacts on coworkers are relevant only to the extent those impacts go on to affect the conduct of the business…

Title VII requires that an employer “reasonably accommodate” an employee’s practice of religion, not merely that it assesses the reasonableness of a particular possible accommodation or accommodations. Faced with an accommodation request like Groff’s, an employer must do more that conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options would also be necessary. (citation omitted). Having clarified the Title VII undue-hardship standard, the Court leaves the context-specific application of that clarified standard in this case to the lower courts….

While this seems like a major change to the “undue hardship” analysis, there’s a school of thought that indicates this might not actually change much for Federal agencies.

I asked FELTG Instructor Bob Woods, who will present How are Religious Accommodation Requests Different from Disability Accommodation Requests? on August 17, what he thought about Groff. Here’s what Bob said:

[W]hile Groff is clearly an important decision, I don’t think it will have a significant impact on Federal agencies. I don’t have a crystal ball, but I say this based upon the nature of the types of accommodations typically requested in such cases and the EEOC’s existing guidance (in both 29 CFR 1605.2 and EEOC Guidance, Section 12: Religious Accommodation) and their Federal sector caselaw. While the Supreme Court has now clarified its decision in Hardison v. TWA, it also noted that the EEOC already minimized the impact of the term “more than a de minimis cost” in its guidance and decisions.  Although the Groff decision does not limit the EEOC to its current guidance, I believe that they already hold Federal agencies to standards that comport with the plain language of the law.

I also note, as does the Court, that the Postal Service went to fairly substantial lengths to accommodate Mr. Groff.  The 3rd Circuit found exempting Groff for Sunday work would result in an undue hardship that would clearly be more than a de minimis cost. The Supreme Court has vacated and remanded for “further proceedings consistent with this decision.”  Given the asserted impact on the Postal Service discussed in these decisions, it’s possible that the 3rd Circuit may still find an undue hardship.

Agencies would certainly be well advised to review (or create) Religious Accommodation procedures and policies and confer with counsel to review existing/pending complaints of failure(s) to provide religious accommodations to ensure they are not relying upon the concept of de minimis costs. Agencies should also be on the lookout for updated EEOC guidance. As always, we’ll keep you posted on any relevant information that results from this important SCOTUS decision. [email protected].

The Good News: Fed Circuit Offers Reminder to Charge Carefully

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By Ann Boehm, July 18, 2023

An agency lost a removal case before the Federal Circuit this month. In Williams v. Federal Bureau of Prisons, an arbitrator sustained the employee’s removal, but the Federal Circuit vacated and remanded the arbitrator’s decision because the arbitrator failed to properly analyze the Douglas factors. Williams, Case No. 2022-1575 (Fed. Cir. July 6, 2023).

If you just read that quick summary of Williams, the decision seems to be pro-employee and bad news for agencies. But here’s the thing: The decision is completely consistent with years of MSPB and Federal Circuit precedent. And the lesson agencies should learn from it is – charge carefully, or have your penalty at the mercy of arbitrators, administrative judges, the MSPB, and the Federal Circuit.

To make sure our good friends of FELTG don’t face a similar situation, let’s review what happened in Williams.

Ms. Williams started work as correctional officer at the Federal Correctional Complex in Beaumont, Texas (FCC-Beaumont) on March 4, 2018. Before that, in January 2016, she met Alex Hayes. They were engaged in July 2018, and had a child together in September 2018.

So, what’s the big deal here? Turns out Mr. Hayes had been in Bureau of Prisons (BOP) custody in his past – from June 2005 to July 2013 – and on supervised release until July 15, 2018. He even spent some time at FCC-Beaumont. The problem for Ms. Williams was the BOP Standards of Employee Conduct prohibit employees from becoming involved with inmates or former inmates, and if they do engage in such improper conduct, they must report it in writing to the BOP. Former inmate, as defined by BOP, means less than one year has elapsed since release from BOP custody or supervised release. Mr. Hayes fit into this category until July 2019.

BOP was ahead of Ms. Williams in knowing about Mr. Hayes’s former inmate status. In May 2019, they placed her on administrative reassignment, and Internal Affairs investigated her improper contact with a former inmate and failure to report the contact. Ms. Williams knew Mr. Hayes had been incarcerated but did not know about his BOP past until she heard rumors. She questioned Mr. Hayes. On June 3, 2019, she learned he had been in Federal custody. She reported this to BOP the next day.

[Quick aside here. It just seems to me if you are engaged and have a child with someone, some of your conversations might get into, “Hey, where have you lived in the past?” “Ever been in Beaumont before?” “Any chance you have ever been in Federal prison — for 8 years or so?”]

The Internal Affairs investigation, which ended in July 2019, found Williams had engaged in improper conduct with a former inmate and failed to timely report the contact. On Feb. 5, 2020, the BOP issued a notice of proposed removal based on two charges: (1) improper contact with a former inmate; and (2) failure to timely report. The final decision removing Ms. Williams was issued on April 22, 2021.

Ms. Williams challenged her removal before an arbitrator. The arbitrator sustained the charge on improper contact but did not sustain the charge on failure to report. In not sustaining the failure to report charge, the arbitrator explained that Ms. Williams immediately reported the contact as soon as she found out about Mr. Hayes’s past.

I’m sure you astute FELTG readers know, as the Federal Circuit reminded us in Williams, “when an arbitrator sustains fewer than all the agency’s charges, the arbitrator ‘may mitigate to the maximum reasonable penalty’ for the sustained charges unless the agency has indicated it desires a lesser penalty be imposed on fewer charges. Williams at 4 (citing Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999)). The BOP had not indicated it desired a penalty less than removal if only one charge was sustained, so the arbitrator should have independently analyzed the Douglas factors to determine a reasonable penalty for the one sustained charge. [Learn more on this subject. Purchase a recording of FELTG’s 60-minute training The Role of the Douglas Factors in Arbitration.]

The arbitrator did not do this, even though he indicated it would be just and fair to change the removal to a long suspension. He also failed to independently analyze the Douglas factors and deferred to the deciding official’s Douglas analysis. Because the arbitrator misunderstood and misapplied the law, the court vacated the removal and remanded for the arbitrator to independently analyze the relevant Douglas factors to determine the maximum reasonable penalty. What can agencies take away from this case?

  • Charge properly. Remember that you must prove a charge by preponderance of the evidence, or 51 percent.
  • If you think there is a chance any of your charges may fail, the Douglas factor penalty analysis should mention an alternative penalty in that situation.
  • Remember that arbitrators often have very little experience with the Federal disciplinary process. Advocates should do their part to educate them.

Williams is not a new case that is averse to agencies. It is simply a good reminder of how things work in discipline. And that’s Good News! [email protected]

First-time Caller, Long-time Loss of Confidence and Trust

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By Dan Gephart, July 18, 2023

Sometimes, a Federal employee’s misconduct is so far beyond the pale that it’s impossible to ever again trust that employee. That was certainly the case for a certain IRS contact representative/Howard Stern devotee. Sorry, I meant to say former IRS contact representative. (I don’t know the status of the ex-employee’s Stern fandom).

The employee arrived at work and called the Howard Stern radio show on his personal cellphone. He was put on hold. When the employee’s 8 am shift started, he began handling incoming phone calls from taxpayers on his work phone.

Two hours later, the Stern show took him off hold. The employee didn’t realize this and continued his conversation with a taxpayer, which was now being broadcast live. He unknowingly shared the taxpayers’ personally identifiable information, including her phone number and the amount of back taxes she owed, to thousands of Sirius XM listeners.

Howard Stern shouted the employee’s name to get his attention. The employee then put the taxpayer on hold to talk to Howard Stern, where he “gleefully” identified himself as a Federal employee.

It’s no surprise that the agency removed the employee, nor that the MSPB upheld that removal earlier this year, citing the effect of the employee’s misconduct on his supervisors’ confidence, while questioning his potential for rehabilitation. Forsyth v. Treasury, NY-0752-16-0246-I-1 (Mar. 15, 2023)(NP). Regarding the latter, the employee was directed to make a post-incident call to the Howard Stern show to ask them to not rebroadcast the telephone exchange, which the employee did, while also requesting a tour of the show’s broadcast studio.

A few months back, Ann Boehm extolled the value of Douglas Factor Five in her monthly Good News column. Douglas Factor 5 is consideration of “the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties.”

FEMA similarly lost confidence in a Senior Executive Service employee who misused her position to help a friend gain employment at FEMA. The SESer also provided her friend with personally identifiable information of FEMA employees. Clark v. Department of Homeland Security, DC-0752-13-0661-I-1 (Feb. 21, 2023)(NP).

The employee, who worked in the agency’s Chief Component Human Capital Office, pointed to a positive evaluation she received after the incident to argue that her supervisor had not lost confidence in her. The Board held, however, that “the penalty judgment belongs to the agency, not to an appellant’s supervisor … in the absence of an agency’s failure to consider the relevant Douglas factors adequately, a supervisor’s opinions are insufficient to overcome the agency’s judgment concerning the appropriateness of the agency-imposed penalty.”

How much confidence would you have in an employee who “golfed during official duty hours on at least 205 days for which he claimed no annual leave on his official timesheets.” In Sheiman v. Department of Treasury, MSPB No. SF-0752-15-0372-I-2, at 15 (May 24, 2022) (NP),  the Board agreed removal was the right penalty, stating that it was “clear from the deciding official’s testimony that his loss of trust and confidence in the appellant played a major role in his decision.”

The MSPB decisions in this article have been issued within the last couple of years. For guidance on increasing the chances that your removals match the Board’s view on penalty assessment, register for Charges and Penalties Under the New MSPB on August 1. This half-day session is part of FELTG’s weeklong Federal Workplace 2023: Accountability, Challenges, and Trends event. [email protected]

Reason #37,129 NOT to Issue a Letter of Warning: EEO Complaint Edition

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By Deborah J. Hopkins, July 18, 2023

It may be one of the most written-about topics in this newsletter, but we keep writing because we keep seeing cases where employees challenge letters of warning, caution, counseling, and the like, and agencies get tied up in litigation for years as a result.

Look at Shad R. v. USPS, EEOC Appeal No. 2022004404 (May 11, 2023). The complainant in this case was a sales/service/distribution associate at a postal facility. The agency issued him two letters of warning (LOW):

  1. On 23, 2021, the LOW charged the complainant with “Hazmat Question/Work Performance/Failure to Follow Instructions.” The supervisor said that the complainant “did not ask the Hazmat Question at all, did not give customer his full attention, did not apologize to the customer for making her wait, did not suggest extra services, and did not offer any additional items for the customer. Complainant was also not wearing his uniform, but rather was wearing an apron.”
  2. On March 6, 2021, the LOW charged “Conduct/Failure to Follow Instructions.” The LOW specified that, the complainant failed to remove his personal items from the retail window and workroom floor, despite an order to do so.

According to the record, the February LOW was rescinded, and the March LOW was grieved and proceeded to arbitration, with the outcome of the arbitration unknown. The complainant filed an EEO complaint over the two LOWs, alleging that the agency discriminated against him and subjected him to a hostile work environment on the bases of:

  • Race (Latino),
  • National origin (Hispanic),
  • Sexual orientation (gay),
  • Religion (Satanism),
  • Disability (HIV, anxiety, and depression), and
  • Reprisal for prior protected EEO activity.

The supervisor (S1) who issued the LOWs “explained that the February LOW resulted from her personal observations of Complainant’s interaction with a customer. S1 also explained that she issued the March LOW because Complainant had multiple personal items in the workplace, including an inappropriate picture of a woman, and he did not remove them.” In his defense, the complainant asserted, among other things, “the March LOW was improper because, as a gay man, he does not objectify women.”

The EEOC affirmed the Final Agency Decision which found no discrimination or harassment. In other words, the agency had a legitimate, non-discriminatory reason for warning the employee. That said, had the warnings been issued orally or via email and NOT put on letterhead, most likely the complainant would not have felt aggrieved for the purposes of filing a union grievance or an EEO complaint. Something about non-disciplinary actions being out on letterhead escalates things to a level where an employee wants to challenge, rather than heed the warning. We’ll discuss this plus a lot more on July 26 during the two-hour virtual training No Need for Fear: A Guide to Navigating EEO Challenges for Supervisors and Advisors. [email protected]

Note: after publication, FELTG heard from a previous USPS employee who informed us that per its CBA, a Letter of Warning counts as formal discipline for certain USPS employees. The principle about LOWs remains the same, but in the case above it may have counted as discipline.

How Preference Eligibility Can ‘Upset’ a Simple Termination Case

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By Barbara Haga, July 18, 2023

While the purposes of a trial period and a probationary period are much the same, the rights for excepted service employees who are subject to an adverse action are different than those for competitive service employees. In fact, it wasn’t until 1990 that non-preference eligible excepted service employees had appeal rights to the MSPB at all.

Under the original Civil Service Reform Act, excepted employees who were not preference eligibles did not have MSPB appeal rights. The Supreme Court addressed the issue in United States v. Fausto, 484 U.S. 439 (S. Ct. 1988), affirming the MSPB’s determination that non-preference eligibles were not included in the groups of employees eligible to appeal adverse personnel actions to the Board. The Civil Service Due Process Amendments Act of 1990, Pub. L. No. 101-376, granted those rights to the non-preference excepted employees about two years later.

Preference in hiring applies to permanent and temporary positions in the competitive and excepted services of the executive branch. When we address the broad category of who is a preference eligible, we typically picture those who served in uniform in the military, and certainly the vast majority of individuals who have preference obtained in that way.

However, it is important to remember that there are other categories of preference that extend from a military member’s service.

This is called derived preference and includes the spouse of a disabled veteran who is unemployed, the widow or widower of a deceased veteran, or the parent of a disabled or deceased veteran. As the Board wrote in Redus v. USPS, 88 M.S.P.R. 193 (2001):

The Veterans’ Preference Act should be construed, whenever possible, in favor of the veteran, especially when the right to defend against charges of wrongdoing is involved. See Flanagan v. Young, 228 F.2d 466, 472 (D.C. Cir. 1955). Therefore, we find that the plain language of the statute indicates that Congress intended to confer preference eligible status on spouses of disabled veterans who are unable to support their families through employment with the government because they suffer from service-connected disabilities.

Numerous conditions must be met to qualify for use of such preference. An OPM guide describes requirements for each category. It is not completely up to date since it still addresses preference for “mothers,” even though preference is currently extended to both mothers and fathers.

The language regarding spousal eligibility in 5 USC 2108(3)(E) states that preference eligible includes “the wife or husband of a service-connected disabled veteran if the veteran has been unable to qualify for any appointment in the civil service or in the government of the District of Columbia.”

The “spouse” section of the OPM guide gives examples of when disqualification may be presumed. These occur when the veteran is unemployed and 1) is rated by appropriate military or Department of Veterans Affairs authorities to be 100 percent disabled and/or unemployable; 2) has retired, been separated, or resigned from a civil service position on the basis of a disability that is service-connected in origin; or 3) has attempted to obtain a civil service position or other position along the lines of his or her usual occupation and has failed to qualify because of a service-connected disability.

The guide applies to hiring, so why would readers of this column be concerned about that? Here’s why: If the individuals exercising this preference are excepted employees, it will give them due process and appeal rights a year earlier than they would otherwise have them.

Never saw this coming!

The Redus case is a perfect example of how this issue can completely upset an otherwise simple termination case. Redus was a Postal Service employee. Her coverage as an employee entitled her to due process and was based on her status as a preference eligible. The information here is applicable with other excepted service cases.

Redus was terminated in June 1998 after more than a year of service as a Distribution Clerk. The charges were failure to report for duty as instructed and AWOL. She was not given a proposed notice and opportunity to reply, nor was she given MSPB appeal rights. Regardless, Ms. Redus found her way to the Board.

Her husband was 100 percent disabled. The Postal Service was not aware of this. She did not use spousal preference to obtain employment.  She produced documentation of his disability after her termination. The VA documentation she supplied was dated Jan. 20, 1998, and said:

“This will certify that Leon Redus is a beneficiary of the Department of Veterans Affairs; that said beneficiary has been rated incompetent by the Department of Veterans Affairs in accordance with the laws and regulations governing said Department and that the appointment of a guardian of his estate is a condition precedent to the payment of monies due said beneficiary by the Department.”

Redus was persistent in advancing her case.  She lost at the initial level because the AJ ruled that while her husband was disabled, there was no evidence that he had failed to qualify for any appointment. The AJ’s decision was upheld by the Board. Redus continued her challenge to the Federal Circuit.  The Board asked the Federal Circuit to let them review the decision. The Court agreed, which led to the decision cited above.

The Board changed its mind regarding what was necessary to meet the last portion of the definition in 5 USC 2108(3)(E). It found the  information Redus showed that her husband would not have qualified for any Federal position was sufficient to give her preference. Because of that, she was entitled to due process. The agency stated that it did not give notice because it did not know that she was a preference eligible. That was immaterial. The Board overturned the action and waived the untimely filing, since she was not given notice of her appeal rights.

In Cowan v. Interior, DE-0752-10-0066-I-1 (MSPB 2010), something similar happened. Cowan claimed preference when she was hired.  She produced documentation that her husband had been rated as 70 percent disabled by the VA, had been granted a disability annuity by SSA, and had resigned from his civil service position due to his diabetes.

In spite of this, Interior violated her due process rights, and they were reversed.