Sexting on an Agency Cell Phone: Prompt Action Required

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By Deborah J. Hopkins, June 14, 2023

A new case from the EEOC on hostile work environment harassment illustrates the importance of an agency’s actions in not only avoiding liability, but also (and more importantly) in protecting the victim from continued unwelcome conduct. Joan V. v. VA, EEOC Appeal No. 2022002963 (Apr. 20, 2023). In this case, the agency was dinged for failing to “properly address” a situation where a complainant was receiving multiple unwanted sexually explicit text messages from an unknown source, on her government-issued cell phone. The messages included “multiple specific references to female genitalia and acts to be performed to male genitalia.”

The complainant requested a new phone number on March 25, 2021. On March 29, the IT Service Desk denied the request, responding via email: “‘Each phone comes with a SIM card that supports a number. We pay for each number we receive. We can’t change out your number due to too many calls and text messages … The cost does not outweigh the benefit.’”

Over the next several weeks, the complainant made multiple additional attempts to get a new phone or phone number. She was given what we Midwesterners call the “run-around.” She finally received a new phone number on May 21 — eight weeks after her initial request.

Unfortunately, the sexually explicit messages began coming to her new number. Over the course of the next several weeks, her number was changed yet again. In August 2021, five months after the initial request, the complainant received a third new phone number and requested that the “number not be placed in the Global Address Listing (GAL).” The agency granted her request and this resolved the problem. She finally stopped receiving unwanted text messages. The case does an excellent job setting out the legal standard for HWE claims: To establish a claim of harassment, the complainant must show:

  • she is a member of a statutorily protected class;
  • she was subjected to unwelcome verbal or physical conduct involving the protected class;
  • the harassment complained of was based on the protected class;
  • the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and
  • there is a basis for imputing liability to the employer.

[Citation omitted.]

Based on the number, duration, and egregious nature of the text messages, the EEOC found the first four elements satisfied. The discussion on element 5 – agency liability – took into consideration the agency’s delay in providing prompt, effective correction action:

The Agency is under an obligation to do “whatever is necessary” to end harassment, to make a victim whole, and to prevent the misconduct from recurring… The ongoing nature of the harassing behavior demonstrates that actions taken by the Agency were not effective in alleviating the harassment. As such, we find that Complainant established that she was subjected to harassment based on sex for which the Agency is liable.

The moral of the story: It shouldn’t take five months to provide prompt, effective corrective action to a victim of harassment. For more on harassment and other challenging EEO issues, join FELTG on July 12-13 for Advanced EEO: Navigating Complex Issues. [email protected]

The Good News: Words and Attitude Matter — and Can Justify Removal

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By Ann Boehm, June 14, 2023

Frequently, folks in FELTG training classes ask how to handle an employee who is rude, or angry, or disruptive, or makes inappropriate comments, or writes inappropriate emails. Often, these folks mention complaints from other staff members or supervisors about the employee’s behavior. And for some reason, they often fear taking action against the employee for the disruptive behavior.

A FELTG trainee’s recent inquiry about an employee’s disruptive behavior prompted me to look at Merit Systems Protection Board (MSPB) cases to see whether the Board thinks these types of matters merit discipline and even removal. Lo and behold, the Board does!

In one case, the agency removed an employee based upon 18 (!!) specifications of conduct unbecoming a Federal manager. Hornsby v. FHFA, DC-0752015-0576-I-2 (April 28, 2022) (NP).

One of the 18 specifications involved an incident that occurred during a meeting with a colleague. The employee held up an email from another employee and said he found it to be “’[expletive] offensive.’” Id. at 8. The colleague wanted to leave the meeting based upon the employee’s use of the expletive. Although the Administrative Judge did not think the single use of the expletive was conduct unbecoming, the Board disagreed. Id.

The Board sustained the specification, noting that it has “frequently held that rude, discourteous, and unprofessional behavior in the workplace is outside the accepted standards of conduct reasonably expected by agencies and can be the subject of discipline.” Id. at 9 (emphasis added). The Board cited two cases sustaining removal for such behavior. Id. [Side note:  Those are good cases to review if you have an employee who is rude, discourteous, disrespectful, or using abusive language. They are Holland v. DoD, 83 MSPR 317 (1999), and Wilson v. DOJ, 68 MSPR 303 (1995).]

The Board ended up sustaining only five of the 18 specifications, including the use of the expletive. It also sustained the specification about the employee revealing the name of an EEO complainant to those without a need to know; one where the employee put his hands over the mouth of a colleague to stop him from speaking in a meeting (who does that in the workplace!?); one where he intimidated agency attorneys by suggesting that if they did not edit a memo to his liking, the memo could be a “’career ender’”;  and one where he asked the Human Resources Director to intervene to make his supervisor give him a higher performance rating (that one included an email directing the intervention and threatened legal action). Id. at 9-14. These actions were all enough for the Board to reinstate the removal that had been reversed by the Administrative Judge. Id. at 23-27.

Other inappropriate conduct to take very seriously is anything threatening harm to others — especially in today’s violence-filled environment. In Barker v. Department of the Army, DC-0752-15-1056-I-1 (May 22, 2023) (NP), the employee said, “‘They are pushing me over the edge. You think they would be concerned about that with all these shootings.’” The agency removed him based on charges of conduct unbecoming a Federal employee and lack of candor. Id.

Even though the Board sustained only the conduct unbecoming charge, it still found the penalty of removal to be reasonable. Id. at 11-14. Factors that supported the reasonableness of removal included the employee’s past 14-day suspension for threatening to kill his supervisor (which, in my opinion, should have been a removal), and because the employee’s comment was made soon after a shooting at a nearby Fort. Id. at 13-14.

As human beings, we know what constitutes inappropriate workplace behavior, yet I fear agencies tolerate it more than they should. Take the allegations seriously and investigate. Then see what the Board has said about similar misconduct. And always, always, always take threats seriously.

We have plenty of good employees in the Federal government. Don’t subject them to rude, angry, inappropriate, and threatening behavior by the bad ones. The Board says you should be able to remove the bad ones for such conduct. That’s Good News! [email protected]

A Painful (and Costly) Lesson About Last-Minute Probationary Removals

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By Deborah J. Hopkins, June 14, 2023

We get a lot of questions about probationary periods. There can be confusion if employees switch agencies, are rehired after a break in service, or have veterans’ preference.

The end date of an employee’s initial appointment probationary period, however, is not a mystery. The probationary period lasts one year; it ends when the appointee completes his scheduled tour of duty on the day before the anniversary date of his appointment. 5 C.F.R. § 315.804(b). Therefore, an agency can pinpoint the exact moment the probationary period ends, and they can do so from the very first shift the employee works.

A recent MSPB case (Stewart v. DOT, 2023 MSPB 18 (May 16, 2023)) reinforces a lesson that’s important to share with all supervisors, advisors, and agency leaders: If you want to remove a probationary employee, do NOT wait until the very end of the probationary period to do so. Give yourself a cushion of at least a few days.

Here’s a timeline to help clarify what happened in the case:

  • The appellant began working for the Department of Transportation as a career-conditional GS-12 Safety Recall Specialist on Jan. 22, 2017. His regular work schedule was Monday through Friday, 7 a.m. to 3:30 p.m.
  • On Jan. 11, 2018, his Division Chief recommended that he be terminated for post-appointment reasons.
  • Also on Jan. 11, the Division Chief informed the appellant that, unless he resigned his position on or before Jan. 15, he would be terminated.
  • On Jan. 16, the appellant tendered his letter of resignation, to be effective Monday, Jan. 22.
  • HR advised the division chief that Jan. 22 was AFTER the end of the probationary period, so the Division Chief requested the appellant change his resignation date to Friday, Jan. 19, his last scheduled workday before the expiration of his probationary period. The appellant declined, yet he returned his laptop and PIV at the end of his tour Jan. 18.
  • On Jan. 19, HR “obtained the signatures from the relevant officials and completed the paperwork necessary to effect the termination action.”
  • Also on Jan. 19, the appellant was out on previously scheduled sick leave so the agency sent the termination notice “effective at the close of business on January 19, 2018” to his work email address, and by overnight delivery to his home address.

Do you see a problem yet?

According to the Board, “we find that a termination at the end of a probationer’s final tour of duty does not satisfy the regulatory requirement that a termination be effected before the end of his final tour of duty. See 5 C.F.R. § 315.804(b).” [bold added]

Even if the appellant had somehow logged in to his work email at some point before 3:30 p.m. on Jan. 19, which is disputed as he had returned his laptop the day before, the language in the letter controls. The appellant was clearly informed he was being separated after his probationary period was completed. And because he was no longer a probationer, he was removed without due process.

Thanks to the lack of quorum at the MSPB, this case sat in the stack of PFRs for more than five years, until last month when the Board ordered the agency to restore the appellant to his previous position and pay five-plus years of back pay, plus other costs.

For more on this topic, check out the recently recorded training Everything You Need to Know About Probationary Periods.

[email protected]

 

Ask FELTG: Does a Local CBA Trump an Agency’s Nationwide Policy?

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June 14, 2023

Here’s more context from the loyal FELTG reader who posed the question:

Let’s say, hypothetically, management at a regional outpost agrees to terms regarding office workspace with their local union, and then enters into a CBA articulating those provisions. Later, the national agency management team creates a policy on office workspace that is inconsistent with the local CBA.

Which policy controls at the outpost? Is it the local policy as stipulated in the CBA or the national policy? Can the actions of a manager at the local level essentially prevent the agency’s leaders from having a universal policy?

Here’s FELTG’s answer:

The union agreement always trumps an agency’s new policies with two exceptions:

  1. The agency can demonstrate that the new policy is related to the “necessary functioning” of the agency and the change is in response to an “overriding exigency.” See SEC v. FLRA, 568 F.3d 990 (DC Cir, 2009).
  2. The new policy is implementing a new law. (The incontrovertible law part of the new policy is effective right away. However, the agency still must bargain I&I and any flexible parts of the law).

So, let’s say local management agrees to office space of a specific size, and the agency head later decrees that office space will be less than that, the agency is obligated to continue the bargained-for office space if and until it can bargain its way out of it.

Here’s an example we like to discuss during FLRA Law Week (next held September 18-22). Years ago, the Secretary of HHS declared through a new policy that the work places within HHS would be smoke-free. He reasoned that given the word “health” in the name of his agency, he should prohibit things that by their very nature are not healthy. Very reasonable reason for a new policy, we tend to think.

However, it conflicted with several local CBAs, including at NIH, which had old provisions allowing designated smoking areas.

There was a huge welcome sign as you entered the main campus of an HHS sub-agency that states it is a “totally smoke-free environment.”

Several times, we had to plead with FELTG Past President Bill Wiley to not add a comment to the sign, stating “unless you’re in certain bargaining units.”

Have a question, Ask FELTG.

The materials presented here and on this website are for informational purposes only and are not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship.  Should you need legal advice, you should contact an attorney. 

And Now a Word With … OFO Director Carlton Hadden

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It can be quite easily argued that Carlton Hadden is the face of the Equal Employment Opportunity Commission’s Federal business. He recently took time to answer our questions. Learn more.

Read more

Supporting the Deciding Official – Even if You Disagree With the Penalty

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By Deborah J. Hopkins, May 22, 2023

A recently issued non-precedential MSPB case caught my attention: an appeal involving a proposed removal that the Deciding Official (DO) mitigated to a demotion. In most cases, if a DO mitigates a proposed removal, it’s because the DO doesn’t sustain some of the charges or thinks a removal penalty is too severe in light of the misconduct and the aggravating factors. In this case, though, I think most FELTG readers would agree the misconduct the DO sustained is egregious – and yet the DO still decided removal was not appropriate. Ditch v. FDIC [PDF], DE-0752-15-0022-I-1 (Feb, 28, 2023)(NP) [PDF].

The DO sustained ten specifications of conduct unbecoming a supervisor against the appellant, a GS-13 Supervisory Examiner:

  1. The appellant had sex with a subordinate female employee, off duty, on two occasions.
  2. The appellant, the subordinate female employee, and another employee whom the appellant supervised went to a bar and drank during duty hours.
  3. While at the bar, the appellant insisted that the subordinate female employee drink a shot of whiskey, saying, “drink it, come on, don’t be a p*ssy.”
  4. The appellant and the subordinate female employee kissed while at the bar.
  5. The appellant certified the subordinate female employee’s timesheet for that day as working her regular 8-hour shift, instead of accounting for the time she spent with him at the bar.
  6. Despite the subordinate female employee advising the appellant she was only interested in a professional relationship, on two occasions while they both were on duty, the appellant expressed his continued romantic feelings to her.
  7. The next day, the appellant sent the subordinate female employee a text message also saying that he had feelings for her.
  8. The appellant stated he was going to find a way to reassign the subordinate female employee.
  9. Two weeks later, the appellant instructed the subordinate female employee to meet with him during duty hours, at which time he asked her if they had a chance for a personal relationship and if she had feelings for him.
  10. The appellant, during duty hours, told another subordinate employee of his romantic feelings for the subordinate female employee and that he had slept with her.

According to the case, the DO considered the Douglas factors and found “the appellant’s misconduct very serious as it caused ‘significant disruption to the efficiency of the Denver’ office, particularly because as a supervisor the appellant was entrusted with significant responsibilities, including acting as a role model, demonstrating good judgment, developing members of his team, fostering a positive workplace culture, and promoting teamwork.” Id. at 10.

But the DO also found significant mitigating factors, including that the appellant had “no past disciplinary record, he had 25 years of service, he got along with fellow workers, he was dependable, and, due to his 25 years of satisfactory performance as a Bank Examiner, she believed that he had the ability to perform in that position.” Id.

If you’re like me, you might look at these facts and think the DO got it wrong, and that her view of holding a supervisor to a higher standard is different than yours. But if you, like me, are an advisor to supervisors in agency actions, then you also know that, according to 5 CFR § 752 (and most likely, your agency’s policy), it’s the supervisors and managers who make these decisions. Your role is limited to providing advice on legality and options, leaving the decision up to the DO. The Board found the penalty to be within the bounds of reasonableness and upheld the demotion.

I won’t get on a soapbox here, but I would be remiss if I didn’t mention the potential liability for a finding of a hostile work environment in this case if the suspension did not promptly correct this offensive behavior, but that’s a different article for a different day.

For more on this topic, join me on Aug. 1 for Charges and Penalties Under the New MSPB, which is part of our brand-new five-day Federal Workplace 2023: Accountability, Challenges, and Trends event. [email protected]

Don’t Become a Meme: Know What Is a Protected EEO Activity

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By Dan Gephart, May 16, 2023

Record scratch.

Freeze frame.

“Yep, that’s me. You’re probably wondering how I got here.”

I often think of this movie-cliche-turned-meme when I read or hear about EEO reprisal. I picture a supervisor, sitting in an EEOC-ordered training, explaining how an employee made claims about discrimination that had no basis, and were eventually dismissed. However, in a huff of frustration or anger, that supervisor said or did something rash that cost his agency and landed him in the training.

The EEOC defines reprisal, aka retaliation, as “treating employees badly because they complained about discrimination on the job, filed a discrimination charge or complaint, or participated in any manner in an employment discrimination proceeding.”

It’s human nature. A knee-jerk reaction. Someone has accused you either directly or indirectly of a violation of the law and, in the moment, you say or do something that is influenced by your emotional state. It’s no wonder reprisal claims make up such a big bulk of EEOC’s case load. And what we’ve seen trip up many supervisors is that you don’t have to be directly accused of discrimination for reprisal to be found. The employee doesn’t even have to file a complaint before the reprisal claim arises. Remember that definition in the previous paragraph and consider the key words: “or participated in any manner in an employment discrimination proceeding.”

The complainant in Green v. Secretary of Navy, EEOC Appeal No. 01964701 (1997) alleged he was subjected to discrimination in retaliation for prior EEO activity, naming the following incidents:

  • He was forced to assume duties and responsibilities without commensurate pay and adequate personnel.
  • He was forced to work in an unsafe environment.
  • The agency failed to remit documentation to him.
  • He was forced to work under “management personnel who commit waste, fraud and abuse.”
  • The agency threatened to eliminate his position.

The agency dismissed this portion of the appellant’s complaint for failure to state a claim. Basically, the agency’s response was: What EEO activity? Before this all went down, the employee had notified the agency of his intention to testify on behalf of other employees alleging discrimination. But he never actually testified.

Doesn’t matter, the EEOC ruled: Simply notifying the agency of his intention to provide testimony on behalf of other employees alleging discrimination was participation in protected EEO activity.

On a related note, a seminal case in this area is the Supreme Court decision Thompson v. Northern American Stainless, LP, 131 S. Ct. (2011). In Thompson, it wasn’t the employee who participated in an EEO activity – but the employee’s fiancée. Previous courts, including the District Court in this case,  had ruled that retaliation was limited to “persons who had personally engaged in protected activity by opposing a practice, making a charge, or assisting or participating in an investigation.”

The Supreme Court decided differently: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”

So, add close relationship/association with individuals who file complaints as close enough to constitute protected activity. Just how close should that association be? Well, we don’t really know that. In Thompson, the Supreme Court declined to “identify a fixed class of relationships for which third-party reprisals are unlawful.”

What other activities are protected? Here are some activities that are a little more obvious, yet still too-often overlooked:

  • Contacting an EEO counselor.
  • Filing a formal EEO complaint, even if it’s a frivolous complaint.
  • Testifying at an investigation or hearing.
  • Representing a complainant.
  • Providing documents to a complainant.
  • Requesting a reasonable accommodation.

Look at all the different activities that are protected. It’s no wonder there are so many successful reprisal claims. If you want to avoid the being a meme, think before you talk, only take actions based on legitimate business reasons, and, oh yes, join Bob Woods this Thursday (May 18) at 1 pm ET for Avoid the Pitfalls of EEO Reprisal.  [email protected]

The Board Saves the Deciding Official; Agency Prevails Despite DO Mistakes

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By Deborah J. Hopkins, May 16, 2023

As we work our way through all the cases coming out of MSPB’s backlog, some catch our attention more than others, including Lott v. Army, SF-0752-16-0490-I-1 (Apr. 10, 2023)(NP).

In this decision, the material facts were not in dispute. The appellant suspected that her husband was having an affair with a soldier in his unit. She improperly accessed agency databases containing Personally Identifiable Information (PII) to track down information on the soldier. She then passed along the PII to a colleague and asked the colleague to investigate whether the affair was occurring.

After a falling out with the appellant, the colleague reported the appellant’s conduct in accessing the PII. The agency investigated and removed the appellant for “unacceptable and inappropriate conduct from an HR employee.”

The Board upheld the appellant’s removal despite the Deciding Official making multiple mistakes:

  1. The DO inappropriately held the appellant to a higher standard based on perceived fiduciary responsibility. At the hearing, the DO “testified that she believed the appellant held fiduciary responsibilities, despite not being entrusted with anything related to the agency’s finances, by virtue of her access to employees’ personal information.” The Board clarified that fiduciary responsibilities under the Douglas factors only apply to an employee who has access or responsibility to an agency’s finances in some capacity – not PII.
  2. The DO wrongly concluded the agency’s Criminal Investigation Command (CID) determined the appellant had committed a crime. Both the PO and DO relied on information that CID determined the appellant committed a criminal offense. In reality, CID only found that it had probable cause to believe the appellant committed crime but did not have enough evidence to actually prosecute. Therefore, it was error to consider the appellant “actually committed” a criminal
  3. The DO improperly found the appellant’s remorsefulness was not mitigating because the appellant argued that similarly situated employees were not similarly disciplined. Among her defenses, the appellant attempted to blame the coworker who printed out the PII, as well as the colleague who took the envelope of PII to look into the information. According to the Board, “it is generally inappropriate to use an employee’s attempts to defend herself in disciplinary proceedings as an aggravating factor or an indication that she lacked remorse.” While the AJ found the DO did not view the appellant’s “finger pointing” as an aggravating factor but instead merely viewed it as a factor relevant to determining the degree of mitigation to warrant her remorsefulness, the Board disagreed and found “that the deciding official inappropriately viewed the appellant’s attempt to defend herself as an aggravating factor.”
  4. The DO failed to give considerable mitigating weight to the appellant’s mental health conditions. The appellant asserted that, at the time of her misconduct, she was “extremely distressed” and dealing with depression and insomnia, and that she made a “rash and impractical decision” as a result. The Board found that this medical condition could have played a part in the charged conduct, and that the DO did not give it considerable weight as a mitigating factor.

Those four mistakes aside, the Board also held that removal was within the bounds of reasonableness. Because the nature and seriousness of the offense is the most important Douglas factor, the Board agreed with the AJ who “noted the deciding official’s testimony that she considered the appellant’s misconduct to be a serious offense that went to the core of her duties as an HR employee.”

In addition, the “appellant herself testified that, as an HR employee, she was responsible for protecting PII.”

The Board also identified several mitigating factors:

  • The appellant had 15 years of Federal service.
  • She consistently received the highest performance ratings.
  • She had never been disciplined.
  • Her depression may have played a part in the misconduct.
  • Difficulties in her marriage and personal life played a central role in her decision to engage in the misconduct.
  • She expressed remorse for the misconduct.

In addition, based in part upon demeanor evidence, the Board deferred to the AJ’s credibility assessment “that the appellant could not be trusted to maintain her professional judgment in the event she again suffered difficulties in her personal life.”

Therefore, the Board upheld the appellant’s removal despite the mitigating factors and the error made by the PO and DO.

For more on drafting legally sufficient disciplinary charges and making defensible penalty determinations, join me on Aug. 1 for Charges and Penalties Under the New MSPB, which is part of our five-day Federal Workplace 2023: Accountability, Challenges, and Trends event. [email protected]

The Good News: Reassignment May Be the Best Thing for Everyone

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By Ann Boehm, May 16, 2023

Our FELTG classes on performance and misconduct emphasize that before supervisors take action against a problem employee, they try everything else first.

Reassignment is one of the suggested things to try.

I worked in the Federal government long enough to realize that, too often, reassignment means “dump the bad employees over there.” That’s not a good solution to a problem employee situation. But there can be reassignments that benefit the supervisor, the employee, and the agency! The key is being creative and flexible enough to figure out whether the right reassignment exists.

In my own career, I had bosses I liked more, and bosses I liked less than others. Sometimes, my personality did not mesh with the supervisor – and that’s OK. Recognizing personality differences, and the impact they have on workplace interactions, is a good thing. One thing I believe in strongly is that there is no way to change someone’s personality – yours or the employee’s. Finding a supervisor whose personality meshes better with the employee may turn a bad employee to a good one – or at least a better one.

Another thing that can impact on an employee’s job satisfaction is organizational change. It could be a change in leadership, mission focus, work schedule – you name it. I used to joke that any time I said I loved my job, something would change to make me dislike it. Agencies are constantly changing.

When I found myself in an unhappy workplace situation, I took it upon myself to seek out details or other reassignment options in the agency. During my career, those efforts worked well for me.

Not all employees will have the confidence to seek out their own reassignments, even when they are miserable in a job. Sometimes, it is because they fear they will be labeled as a complainer. Sometimes, it is because they do not like change. But if a supervisor encourages that change, it may result in the colloquial “win-win” situation.

How does one go about suggesting a reassignment without it seeming like an attack on an employee? Often it starts with a conversation asking the employee if they are content with their position. That can morph into questions about whether they have thought about any other jobs within the agency that interest them. And with the information gathered, the supervisor can start to explore options.

Agencies typically have many vacancies. The old saying, “Better the devil you know than the devil you don’t,” has some truth to it. Hiring someone brand new can be a roll of the dice — could be great, or, yikes, even worse. There may be a good fit for an existing employee somewhere else, and it may not require too much effort to find it.

Also, a reassignment does not have to be permanent. A temporary detail is a good way to find out if the employee will be happy in the new position, and if the receiving supervisor is happy with the new employee.

If you are dealing with a problem employee, do a thoughtful analysis of the root cause of the issues. Think about reassignment as a possibility. It may be the best thing for everyone. And that’s Good News! [email protected]

Applicant Failed Polygraph, But Agency Failed to Provide EEO Process Info

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By Deborah J. Hopkins, May 16, 2023

A new case from the EEOC reminds us it’s important to notify applicants about the EEO process. Lela B. v. DHS/USSS, EEOC Appeal No. 2023000348 (Apr. 20, 2023).

The complainant applied for a Uniformed Division Officer position at the U.S. Secret Service. As is mandatory for such a position, she was required to undergo a polygraph examination, which she failed on Nov. 8, 2021, “based on an inquiry regarding illegal drugs.” She was then notified she was no longer being considered for the position.

She contacted an EEO counselor on April 22, 2022. After an unsuccessful attempt at informal resolution, she filed a formal EEO complaint on June 7, 2022, alleging the agency discriminated on the bases of race (African American) and sex (female) when:

  1. On Nov. 8, 2021, the two agents who conducted the complainant’s polygraph hindered her from obtaining a job in her career field through coercion and deceitful tactics during her test that rendered a false result.
  2. On Nov. 8, 2021, the two agents who conducted Complainant’s polygraph coerced her into writing a false statement following her polygraph.
  3. The Assistant to the Special Agent in Charge released false information to a subsequent potential employer, a local Sheriff’s Office, regarding selling illegal drugs. Complainant stated, on April 21, 2022, the Sheriff’s Office informed her via email that she had “permanent disqualifiers” from employment with them, and suggested she resolve the matter with the agency.

Unsurprisingly, the agency dismissed claims (1) and (2) for untimely EEO contact, as the complainant contacted the EEO counselor months after the 45-day time limit. See 29 C.F.R. § 1614.105(a)(1). The agency also dismissed claim (3) for failure to state a claim.

The EEOC was compelled by the complainant’s argument she was not aware of the 45-day statutory timeframe because she was merely an applicant and not an employee, and “there is no evidence that she was aware of the 45-day time frame through training, posters and other information.”

Regarding claim 3, the EEOC found the agency erred in dismissing the claim, and that “the alleged actions render Complainant aggrieved” because she “alleged that the Agency manipulated the polygraph results and provided a negative reference to her potential employer because she is an African American woman.”

As a result, the EEOC remanded the case back to the agency. Properly accepting claims will save your agency countless time and resources over a remand like this  – and FELTG can help. In October, we’re holding the virtual training Get it Right the First Time: Accepting, Dismissing and Framing EEO Claims – but we can bring this to your agency sooner if you have any interest. Just let us know. [email protected]