Ambulance Company Fails to Respond Properly to Harassment Allegation

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By Dan Gephart, February 15, 2022

Within 24 hours of receiving an unwelcome picture of a sexual nature from a coworker, EMT Andrea Vasquez was fired.

For sexual harassment.

How does something like that happen?

Vasquez v. Express Ambulance Service, 835 F.3d 267 (2d Cir. 2016) is a private sector case. And it’s a few years old now. Yet, it vividly illustrates what happens when an employer relies on evidence of questionable validity. Vasquez is also an example of lazy investigation and victim-blaming. It is one of many cases that will be discussed during  Workplace Investigations Week. The virtual training event runs from February 28-March 4, and will focus on employee misconduct, including workplace harassment.

Here are the details:

Ambulance dispatcher Tyrell Gray flirted regularly with Vasquez. This included touching her shoulders, putting his arm around her, and asking her out. Vasquez regularly rebuffed Gray’s advances. One night, Vasquez reminded Gray that she had a boyfriend. Gray told her that he “could make her leave her man” and promised to send her something during her shift.

Common parlance for what Gray sent Vasquez is as crude as the actual action – a naked picture that made famous people like Brett Favre and Anthony Weiner infamous. Gray captioned the photo with “Wat u think?”

When her shift ended, Vasquez reported the photo incident to her supervisor, who told her to file a complaint right away. Gray saw a visibly shaken Vasquez filling out paperwork and surmised that she was reporting him. He left the room and asked a coworker to lie to supervisors that Vasquez and Gray had a romantic relationship. The coworker declined, and Gray left the building.

Vasquez filed the report. An HR official and supervisor thanked her and assured her that they won’t tolerate this behavior and that they would “sort the situation out.” Vasquez offered to show them the phone messages, but they declined.

The employer’s response sounds reasonable so far, right? Not so fast.

Gray altered a text chain with another woman to make it look like he and Vasquez were having a romantic relationship, and then provided copies of that altered text chain to a supervisor to “prove” that he and Vasquez were dating.

By the time Vasquez was to meet with a committee that included a union rep, the HR official, and the owner of the company, Gray’s “evidence” had already been considered, and Vasquez was told that that she had been terminated for having an “inappropriate sexual relationship” with Gray.

The investigation was certainly prompt, though it was clearly far from effective. What can agencies learn from this debacle? Here are a few points to consider:

  • Gather sufficient evidence to establish uncontested facts in case. How was reviewing the alleged harasser’s text messages consider sufficient, while refusing to review the complainant’s phone?
  • Gather as much evidence as possible on contested facts so the fact finder can reasonably draw conclusions. Beyond looking only at the alleged harasser’s text chain, why was the coworker asked to lie not interviewed?
  • Consider the reliability of the evidence. The fact that the alleged harasser just happened to have photocopies of amorous email exchanges on the very morning that he’s accused of harassment should have been important to the fact finder in drawing conclusions.

And remember this: Failure to appropriately investigate claims of harassment will come back to bite you.

Vasquez filed a retaliation complaint. Although a district court granted Express Ambulance Service’s motion to dismiss, the Second Circuit Court of Appeals reversed that decision.

In its decision, the court wrote:

“Although Vasquez does not use the term “negligence” in her complaint, we conclude that she has pled facts from which a reasonable person could infer that Empress knew or should have known that Gray’s accusations were the product of retaliatory intent and thus should not have been trusted.”

What can be trusted is FELTG training. We hope to see you later this month at Workplace Investigations Week. [email protected]

The Good News: Brief is Better

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By Ann Boehm, February 15, 2022

Communication in 2022 is dominated by Twitter, which limits users to 280 characters per Tweet. Online news organizations provide news feeds specifying number of words and expected reading time. Brevity is so important that online news organization, Axios, has trademarked and is marketing the concept of “Smart Brevity.”

So FELTG friends, stop writing such long discipline documents!!!

No one wants to read a 10-, 15-, or heaven forbid, 25-page proposal to remove or suspend.

Why do managers, employee relations specialists, and attorneys write such long documents? Probably because of fear. The fear is unjustified.

Writers of documents with legal implications believe that providing more words will protect in the event of a lawsuit. In reality, more words are likely to prove detrimental.

We write the way we talk, and in oral communication, silence is uncomfortable. Writing becomes excessive because of unnecessary space fillers — comfort words. Learn to recognize those and cut them! Examples: therefore; essentially; literally (I hope you don’t use that, but suspect you may); henceforth, the, that, etc. Writing is not the same as speaking.

We also worry that failing to cover every possible detail will hurt our case. Judges are guilty of this. Long decisions prevail. If you asked judges, though, they probably prefer to read shorter documents from litigants.

The challenge to concise writing is knowing what is important to the reader. I imagine news organizations now providing word counts and reading times had to adjust to the societal desire for brevity. But reading these news feeds provides the information you need to know without the fluff. People love it!

I challenge you to read the now-prevalent shortened communications. Note how effectively people on Twitter communicate with 280 characters. Pay attention to how news feeds highlight critical information.

Next, apply what you learn to your writing. Resist long factual narratives and put relevant factual information in specifications supporting charges. Trust me. Try it. You will be amazed.

Then, edit your documents. Cut out extra words. Read for what matters. Take out what does not. This takes confidence. The benefits will be significant. You will save time and energy for all subsequent readers. Those readers are likely decision-makers. They will see points concisely and cogently and will not get mired in extraneous details.

This will be an adjustment. It will take confidence. It will improve the discipline process. And that’s good news! [email protected]

[Ann’s note: The original version of this article had 491 words. After editing, it has 396 words. You didn’t miss a thing!]

For more on drafting disciplinary documents join FELTG for MSPB Law Week March 28-April 1, 2022. 

Questionable Hiring Decision Leads to Bad Behavior in HR Office

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By Barbara Haga, February 15, 2022

In August 2020, I wrote about a case involving an HR official who sent racists texts about other employees to subordinates, which the subordinates reported. Jenkins v. Department of Transportation, No. 2019-2075 [PDF] (Fed. Cir. Aug. 6, 2020).

Jenkins, the HR official, was removed for (1) inappropriate conduct, (2) making disparaging remarks racial in nature, and (3) lack of candor. The Federal Circuit upheld the charges and the removal.

Jenkins had made several attempts to avoid responsibility. For example, her initial response was that she didn’t send the texts, then she said she didn’t remember sending them, and finally she argued that the texts were sent from her personal phone and, thus, not the agency’s business. None of these attempts worked.

I didn’t think I would be shocked by this kind of HR practitioner lack of candor again, but I recently found a case that I missed in the weekly MSPB report that summer, because this one was issued the very next day. The case is Freeland v. Department of Homeland Security, No. 2020-1344 (Fed. Cir. Aug. 7, 2020).  Before we get to the lack of candor charge, let’s look at the hiring of this individual by DHS.

Freeland’s Story

Freeland was removed in 2017 from the position of Supervisory Human Resources Specialist in the Recruitment and Placement Branch of a DHS Human Resources Operations Center.  Supervisory staffing positions would typically be concerned with ensuring that appointees are qualified for the jobs they are placed in, and that the required drug tests, physicals, and background checks are completed. Basically, their job is to ensure that the recruitment process is carried out properly and that appointments are legal.

Prior to working for DHS, Freeland had held the same type of position at an Army Civilian Human Resources organization. He resigned in May 2015 after he was issued a proposed 14-day suspension for negligent performance of duties. At the time of his resignation, he was also the subject of a workplace sexual harassment investigation. DHS brought Freeland to work on Sept. 20, 2015. Yes, that’s right. They hired a supervisory HR specialist four months after he resigned from another supervisory HR specialist position. His SF-50 stated that he gave no reason for resignation.

Given what transpired with his security paperwork, which led to the lack of candor charge, it seems that DHS hired Freeland without knowing about the prior issues.

I regularly teach classes on interviewing and reference checking. It’s important. You don’t need to bring another agency’s problem child onto your rolls. Freeland’s recent work history should have been a flashing red light to anyone looking at his resume.  He resigned with no reason given.

That’s Strange

A staffing specialist resigns with no reason given? That’s strange. He applies very quickly to come back to the government in a similar position? That’s strange.

Federal employees and staffing folks who understand what it takes to get back onto the Federal rolls from the outside, don’t resign. They apply for reassignments and transfers and promotions.

Did DHS interview Freeland? I would have asked what his reason was for resigning since none was given. He didn’t have to answer. He might have made up some story, but I would ask. I would also routinely ask:

  • Have you been the subject of any sort of performance counseling in the past appraisal cycle? If so, what was the outcome of the counseling?
  • Have you been questioned and/or counseled by your supervisor about any type of disciplinary infraction in the past year? If so, what was the outcome?

Suggested Questions

If I am interviewing for a supervisory position, I would ask something like, “If I contacted your supervisor and asked about your three major accomplishments in your supervisory position, what would he or she say?” I would let Freeland know that I was going to follow up on these issues with his past supervisor.

If he said I couldn’t contact his last supervisor? I would tell him that it’s highly unlikely he would fare well in the rest of the process if I could not validate the information he provided. If he didn’t give permission, I would be very unlikely to hire him.

It’s important to follow up on these questions. In this case, Freeland’s selecting official should be an even higher-level supervisor in HR so he/she/they should have known that an in-depth reference check was needed.

Freeland’s Army supervisor should have been asked the same things.

  • The SF-50 provided doesn’t give a reason for Freeland’s resignation. Are you aware of a reason? (Remember there is no settlement here, so the agency wasn’t prohibited from releasing information by terms of a contract.)
  • Did you counsel Freeland about any type of performance deficiencies in the past appraisal cycle? What happened as a result?
  • Did you have occasion to question or counsel Freeland about a disciplinary matter in the past year? What was the outcome of that?
  • What were the three most important contributions Freeland made as a supervisor?

One of my final questions would be: “If Freeland was eligible for a promotion and you had a vacant job at the higher grade that you could put him in today, would you?” Unless that Army supervisor (who is also an HR Specialist) is a seasoned prevaricator, you are likely to get him/ her/them to spill the beans during the conversation.

Freeland was issued a 14-day suspension notice on negligent performance of duties. We don’t know whether this was negligence related to his staffing/recruitment duties or his supervisory functions, but I think using the in-depth questions I described might get you to a point where you figure out that something isn’t right. As far as the sexual harassment investigation, there may have been no conclusions from that at the time he departed his Army job, but that could have come later. (I will do a column on annotating investigations per provisions included in the NDAA for FY 2017 in the near future.)

I was working with a supervisor on a GS-14 performance plan a week ago, and he was complaining that he had picked up a problem employee from another agency. He was upset with the losing supervisor. He said, “I did a reference check, and that person didn’t tell me the truth.” I knew he was frustrated. It didn’t change anything we were doing, so I didn’t press the issue, but I really wanted to know what questions he asked.

Did he ask, “Is this person reliable?” The answer could be yes. The work is barely acceptable, but they always turn something in on time.

Did he ask, “Is the person regular in their attendance?” The answer could also be yes. The person is always there, but they don’t do much when they are there. The losing supervisor might technically have answered what she was asked truthfully.

Without getting into in-depth areas like the questions described above, your selecting officials may not find out about issues that would cause them to move on to another candidate.

Next month, we will look at what happened once Freeland was brought on board.

[Editor’s note: Would you like to bring Barbara Haga’s Successful Hiring: Effective Techniques for Interviewing and Reference Checking to your agency, either on-site or virtually? contact Training Director Dan Gephart at [email protected].]

Save Time with Summary Judgment

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By Michael Rhoads, February 15, 2022

Let’s say your agency receives an EEO complaint and follows the EEO complaint process.  You’ve investigated the allegations and issued the complainant the report of investigation. The complainant requests an EEOC hearing. At this point, is it possible to ask the Administrative Judge (AJ) to issue summary judgment? According to 29 CFR 1614.109(g)(2), “After considering the submissions, the administrative judge may order that discovery be permitted on the fact or facts involved, limit the hearing to the issues remaining in dispute, issue a decision without a hearing or make such other ruling as is appropriate.”

The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact.  29 C.F.R. § 1614.109(g). This means both parties (complainant and agency) agree to the material facts of the case.  Each side’s interpretation of those facts might be different, but there’s no hidden meaning or conspiracy theories.

Summary Judgment for the Agency

In Phoebe O. v. Dep’t of the Army, EEOC Appeal No. 2020000674 (Apr. 5, 2021) [PDF], the complainant requested a reasonable accommodation several times.  After the second request, she was retroactively placed on AWOL. After the third request, she was issued a memorandum to report to duty. Each time, the agency addressed its denial of her RA request. Part of the complainant’s request for RA was to be transferred to an open position. However, the agency decided to competitively fill the position instead.

One of the points we make in our courses at FELTG is this: The agency is performing its due diligence as long as it’s participating in the interactive process to find a reasonable accommodation for an employee’s disability.  An employee can request a specific accommodation, but the agency does not have to grant it in the way the employee requests if another effective accommodation is available, or if the employee does not provide information on her medical restrictions.

In this instance, the agency denied the request to transfer to an open position because the complainant did not provide medical documentation to support the necessity for the transfer.

As no material facts were in dispute, the EEOC affirmed the AJ’s decision granting summary judgment to the agency.

Summary Judgment Reversed

Some cases, however, are not as cut and dried. Even though an AJ might issue a decision without a hearing, the Commission sometimes sees things differently. In Jennifer K. v. Dep’t of the Navy, EEOC Appeal No. 2020001035 (May 20, 2021) [PDF], the EEOC reversed the agency’s final decision after finding the AJ improperly issued a decision without a hearing.

This case dealt with some confusion about discovery. But first, some background. The complainant worked as a civil service mariner for the Navy’s Military Sealift Command in San Diego, Calif. When she became pregnant, she notified the agency’s Placement Specialist and asked what other work assignment options were available because the current assignment involved sailing out to sea for an extended period of time. Soon after, the complainant was declared Not Fit For Duty (NFFD) by the Medical Department. The agency had trouble placing her in a vacant position because she was not considered disabled.

Between May-August 2014, the complainant used leave and leave without pay while the agency searched for suitable work. The agency offered training in Seattle, Wash., after the complainant had moved to Eugene, Ore., but the complainant declined the offer because she had already received the training being offered.   Over this period, the complainant also had trouble contacting the captain of her ship to help her with her pregnancy accommodation request. Eventually an LR employee responded that they were unable to accommodate her, but would continue to seek other positions for which she might qualify.

In November 2014, she filed a complaint alleging she had been discriminated against on the basis of sex (female, pregnancy). Because of her removal after management learned of her pregnancy, she was forced to use leave and accumulated insurance debt.  Complications arose when the complainant’s attorney filed in the EEOC’s Los Angeles office and requested the case be transferred from the EEOC’s Charlotte office to LA since her last duty station was San Diego, Calif.  The agency did not acquiesce, and the case remained in the Charlotte office. In July 2016, the AJ assigned to the case in Charlotte issued an Order of Sanction and Dismissing Hearing Request after the agency requested a dismissal of the hearing request. The AJ remanded the complaint to the agency for a final decision.  In a separate case associated with this one, the complainant appealed the AJ’s dismissal. In that case, the Commission found in favor of the complainant and remanded the complainant back to the Charlotte office.

The same AJ in Charlotte was assigned to the remanded case.

And there’s more. In January 2018, the AJ ordered discovery must be initiated on or before March 5, 2018, at 5 PM. On that day, the complainant’s attorney issued interrogatories to the agency, and the agency issued interrogatories to the complainant.  However, there was confusion about when discovery was to be served. At 4:56 PM ET, the complainant’s attorney emailed the AJ for clarification. At 5:51 PM ET, the AJ responded all discovery was due at 5 PM ET. The complaint’s attorney then requested an extension, but the AJ did not reply. The complainant’s attorney then quickly served document requests, admission requests, and deposition notices to the agency on March 5, 2018, at 7:50 PM EST, which is 4:50 PM PST. However, the AJ later emailed the attorney stating the proper time zone to submit requests was 5 PM EST and found the document requests untimely.

The AJ issued summary judgment in the agency’s favor, finding the complainant did not demonstrate the agency was more likely than not motivated by some discriminatory animus. The complainant appealed the decision.

On appeal, the Commission found the AJ erroneously granted summary judgment, “After a careful review of the record, we find that the AJ’s issuance of a decision without a hearing was not appropriate as the complainant was not fully afforded the opportunity to engage in discovery, the record has not been adequately developed, and there are genuine issues of material fact in dispute.  We further find that the AJ erred as a matter of law.”

If you want to know how to make sure your summary judgment isn’t reversed, join Katherine Atkinson for Winning EEO Cases Through Summary Judgment on Thursday, February 24, 2022 from 1:00-2:00 ET. [email protected]

Demystifying the Individual Right of Action

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By Deborah Hopkins, February 15, 2022

A lot of FELTG training involves how agencies should handle disciplinary actions known as Otherwise Appealable Actions, or OAAs. OAAs are suspensions of 15 days or more, demotions, and removals. OAAs get their name because they are agency actions that by statute the employee may appeal to the Merit Systems Protection Board (MSPB or the Board). You may think OAAs comprise most of the MSPB’s caseload. In reality, only about half of the Board’s cases deal with OAAs.

Generally, if an employee files an appeal to the MSPB over a 10-day suspension, reprimand, or low performance rating, the Board does not have jurisdiction and would dismiss the appeal because these actions, while unpleasant to the employee, are not OAAs. But there’s an exception in which a Federal employee (or former employee) can file an appeal to the MSPB over an action that would otherwise not be within the Board’s jurisdiction. It’s the Individual Right of Action (IRA).

The employee is entitled to an IRA hearing if the employee claims a personnel action (reprimand, short suspension, low performance rating, significant changes to job duties, to name just a few) was motivated by the fact that the employee had:

  • Exercised any appeal right that includes a claim of whistleblower reprisal;
  • Cooperated with an agency’s inspector general or OSC investigators;
  • Refused to follow an order that would require a violation of law, rule, or regulation; or
  • Assisted another employee in the exercise of that employee’s rights.

5 USC 2302(b)(8)-(9).

IRAs aren’t rare. In 2020, 11 percent of the Board’s caseload dealt with IRAs.

The Federal Circuit has been quite busy lately (perhaps because the MSPB has been without a quorum for 1,866 days) handling appeals over the outcomes of Administrative Judge decisions on Board IRAs.

Here are a few recent and notable takeaways:

Smolinski v. MSPB, No. 21-1751 (Fed. Cir. Jan. 19, 2022)

The appellant, a visiting provider at an Army hospital, alleged several instances of reprisal for protected activity. While the court rejected most of the claims, it referenced the abuse of authority standard in whistleblower reprisal complaints: “Although 5 U.S.C. § 2302 does not define the term ‘abuse of authority,’ the court found it appropriate to apply the definitions found in related whistleblower protection statutes … and determined that the alleged conduct … would qualify.”

In addition, the court said that in determining jurisdiction over an IRA appeal, the MSPB is not limited to the four corners of the appellant’s original OSC complaint, and that it may consider other relevant agency evidence that supports the appellant’s allegations.

Gessel v. MSPB, No. 21-1815 (Fed. Cir. Jan. 19, 2022) (NP)

This case involved an Air Force employee’s probationary removal. While probationers don’t have full MSPB appeal rights, they still may file an IRA appeal at the MSPB over the removal if they claim it was motivated by reprisal for protected activity. This employee was fired as a probationer because he lost a key to a government building, and the agency had to pay a large amount of money to have the building rekeyed. The employee claimed his removal was not for the loss of the key but rather because he was a whistleblower who made a protected disclosure. The Federal Circuit affirmed the Board’s dismissal of the IRA and found the disclosures were not protected but were the result of typical workplace conflicts. Reports that his coworker made him “uncomfortable,” was “confrontational and attempt[ed] to supervise or discipline him,” and “often watch[ed] foolish and juvenile rap videos and other material,” did not meet the standard set out in the Whistleblower Protection Act.

Marana v. MSPB, No. 21-1463 (Fed. Cir. Jan 20, 2022) (NP)

The appellant, a nurse at an Army hospital, was removed for conduct unbecoming a Federal employee after he inappropriately disclosed a patient’s personal and health-related information to unauthorized individuals. Several of his claims were dismissed because more than two years had passed between his disclosures and the adverse personnel action for which he requested relief. There is a wealth of case law on the knowledge-timing aspect of whistleblower cases: Costello v. MSPB, 182 F.3d 1372, 1377 (Fed. Cir. 1999) (“A two-year gap between the disclosures and the allegedly retaliatory action is too long an interval to justify an inference of cause and effect between the two . . . .”); Salinas v. Army, 94 MSPR 54, 59 (2003) (the disclosure and the allegedly retaliatory act two years later were “too remote in time” for a reasonable person to conclude that the disclosure was a contributing factor to the action taken).

These can be confusing and complicated subjects, and not every personnel action gives the employee the right to file an IRA. For more on OAAs, IRAs, whistleblowing, and related topics, join us virtually for MSPB Law Week, March 28-April 1. [email protected]

3 Things to Know About the Federal Vaccine Requirement’s Injunction

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By Deborah Hopkins, February 7, 2022

On January 21, a Federal district judge in Texas issued an injunction [PDF] on the vaccine requirement for Federal employees, established last September by Executive Order 14043. The Biden Administration has appealed the injunction and has requested a stay while the appeal makes its way through the system. While we await the outcome, there are a few nuances of which your agency should be aware.

1. Your agency should still collect information about employee and future employee vaccination status.

Though the vaccine requirement is on hold, the information on vaccination status is important to agencies as they determine safety protocols for the physical workplace. Agencies are not prohibited from using information on vaccination status to set guidelines for masking, distancing, testing, travel, and quarantine requirements.

2. Your agency does not need to rescind discipline that has already been issued and completed for failure to comply with the vaccine requirement.

While most agencies have not yet implemented discipline for employees who were not vaccinated by the November deadline, some have. The Safer Federal Workforce Taskforce guidance is clear: During the pendency of the appeal on the injunction, the discipline should remain as issued. That said, the discipline should not be relied upon as an aggravating factor in any new disciplinary actions.

3. If your agency predicated an offer of employment on a vaccine requirement, it should amend the offer and remove the vaccine requirement.

However, because this injunction is not the final disposition on the issues, the Task Force suggests the following language be included in the amended offer:

“To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation, the Federal Government will take no action to implement or enforce the COVID-19 vaccination requirement pursuant to Executive Order 14043 on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. Federal agencies may request information regarding the vaccination status of selected applicants for the purposes of implementing other workplace safety protocols, such as protocols related to masking, physical distancing, testing, travel, and quarantine.”

There’s much more to discuss on this topic, including information on exemption requests, what agencies should do if they are exempt from the injunction, and whether agencies are permitted to establish independent vaccine requirements for their workforce. Join FELTG next Thursday, February 17, at 1 pm ET for the 60-minute virtual event Vaccine Mandate on Hold: What Now for Accommodation, Discipline, and Hiring? [email protected]

Federal Court Puts Vaccine Mandate on Pause: What’s Next?

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By Dan Gephart, January 24, 2022

The FELTG mailbag has been overfilled of late with questions from readers preparing to take adverse actions against employees who failed to comply with President Biden’s vaccine mandate. Today we can answer all those questions with just five words:

Put those actions on hold.

Last week, a Federal judge in Texas issued a nationwide injunction [PDF] against the requirement that Federal employees be vaccinated against COVID-19, thus enjoining the defendants from “implementing or enforcing Executive Order 14043 until this case is resolved on the merits.”

Judge Jeffrey Brown of the Southern District of Texas wrote:

“The court notes at the outset that this case is not about whether folks should get vaccinated against COVID-19 — the court believes they should. It is not even about the federal government’s power, exercised properly, to mandate vaccination of its employees. It is instead about whether the President can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment. That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far.”

The Supreme Court struck down Biden’s similar mandate for private sector companies with more than 100 employees. The U.S. Postal Service was part of that mandate. It’s highly likely that this case – Feds for Medical Freedom v. Joseph R. Biden – will make its way to the Supreme Court, as well. Indeed, the Biden Administration has already appealed the ruling to the Fifth Circuit.

The decision came as agencies were preparing to move forward with adverse actions against Feds who, after counseling and education, still refused or failed to get vaccinated and did not request a legal exemption. The judge referred to this looming discipline in his decision as the “imminent harm” that required the injunction.

Despite this setback for the President, the vaccine mandate has already been considered a success by many. In a press briefing soon after news of the decision broke, White House Press Secretary Jen Psaki said that 98 percent of Federal workers are already vaccinated.

However, the decision leaves many of you hanging as you continue to deal with employees who outright refuse vaccination, as well as those who have requested exemptions to the mandate.

If you were in the middle of the reasonable accommodation process on mandate exceptions, you should, obviously, as we mentioned earlier, pause the process. However, make sure that you document that pause. If a higher court reinstates the mandate, it could lead to challenges on processing time, and you’ll need that documented legitimate reason for the delay.

You will also need to re-think your plans for returning employees en masse to the physical workplace to account for the return of unvaccinated employees while ensuring the safety of employees and customers.

While the Office of Personnel Management will not take action to implement or enforce the vaccine requirement, it announced that the Safer Federal Workforce Task Force guidance on protocols related to masking, distancing, travel, testing, and quarantine remains in effect. In addition, the Task Force released a four page Q & A with answers including what to do if agencies have already disciplined employees who failed to meet the vaccine mandate.

Keep an eye on FELTG’s website for updated guidance and news and join us on February 8 from 1 – 4:30 pm ET for Managing COVID-related EEO Challenges in the Federal Workplace. [email protected]

Takeaways from OPM’s Proposed Regs on Accountability and Discrimination

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By Deborah Hopkins, January 18, 2022

Well, FELTG Nation, the changes keep coming. Two weeks ago, OPM issued proposed new rules on 5 CFR Parts 315, 432 and 752, as a result of President Biden’s Executive Order 14003, and also proposed regulations for 5 CFR part 724, the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020.

These are proposed rules and cannot be finalized until OPM considers public comments. You can comment until the first week of February. While you ponder whether you’d like to submit comments for OPM’s consideration, we’ve pulled a few notable pieces from each proposed rule, and have some thoughts of our own.

5 CFR Parts 315, 432 and 752

Performance

If you read the proposed rule, you’ll notice that OPM has a disagreement with the Federal Circuit about the Santos v. NASA case from March 2021. The Federal Circuit ruled that agencies must justify unacceptable performance before placing an employee on a PIP. OPM disagrees that the statute issues this requirement and relies on its own interpretation:

[A]n agency may not take a performance-based adverse action against an employee whom the agency determined was performing unacceptably unless the agency first provides the employee with notice and an opportunity to improve, and the employee continues to perform unacceptably. The determination to be reviewed on appeal to the Board and its reviewing courts is the final determination of unacceptable performance following the PIP, not any interim determination leading to the PIP.

It will be interesting to see what the Federal Circuit thinks about this.

Another interesting item on performance indicates OPM thinks an agency may need (or at least want) to prove they engaged in performance counseling with an employee prior to the initiation of a PIP:

Agencies should also remain mindful that third parties (for example, arbitrators and judges) place a strong emphasis on a supervisor’s effort to assist the employee in improving his or her performance. Evidence that the supervisor engaged an employee in discussion, counseling, training, or the like prior to the opportunity period may assist the agency in developing a stronger case before a third party that the employee was given a reasonable opportunity to demonstrate acceptable performance before a performance-based action is taken. [bold mine]

This has never been a legal requirement. What’s unclear to us at FELTG is if OPM is setting this as a requirement, suggesting it is a good idea, or perhaps supposing this will somehow meet the Santos requirement in a different way.

Misconduct

President Trump’s 2018 Executive Order 13839 included guidance on penalty determination for agencies, and OPM’s regs which became effective in November 2020, adopted much of that language. In the newly proposed regulations, language about penalty determination and comparator employees will be removed completely. These principles are still in MSPB caselaw but will not be in the updated regulations. OPM seems to want to leave these decisions up to individual agencies.

General Observations

  • The term “business day” will no longer exist in OPM regulations, as that was derived directly from Executive Order 13839. As a result, the timeline for decisions on proposed disciplinary actions is not a hard deadline. It is being left up to agencies. OPM still encourages agencies to act promptly.
  • Clean record settlements are back. The regulation prohibiting agencies from removing discipline from an employee’s OPF is being removed. OPM’s justification for this is, among other things, “the prohibition of clean record agreements hampers agencies’ ability to resolve informal and formal complaints at an early stage and with minimal costs to the agency.”
  • Agencies will no longer be required to provide mandatory notification to supervisors at 30 months and one month before the end of an employee’s probationary period. OPM pointed out that agencies are still encouraged “to notify supervisors that an employee’s probationary period is ending, [but] OPM believes the frequency and timing of notifications should be left up to the discretion of each agency.”
  • The regs are FINALLY being updated to include the dual status technicians in the National Guard who gained coverage under the 2018 NDAA.
  • Agencies no longer need to notify OPM if they extend an employee’s notice period beyond 30 days.

5 CFR part 724

The Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020 went into effect Jan. 1, 2021. The new law modifies the No FEAR Act and places requirements on agencies related to findings of discrimination.

According to OPM, the proposed regulations will require an agency to:

  • Provide notice, in an accessible format, of a finding of intentionally committed discriminatory (including retaliatory) acts on the public internet website (linked directly from the home page) of the agency after all appeals have been exhausted.
  • Submit the annual report in an accessible, electronic format prescribed by the Director of OPM.
  • Submit a disciplinary action report, in an accessible, electronic format, to the Equal Employment Opportunity Commission (EEOC).
  • Establish, or leverage, a system to track each complaint of discrimination; and
  • Provide a notation of any adverse action taken under section 7512 of title 5, United States Code, for a covered act of discrimination (including retaliation) in the personnel record of an agency employee found to have intentionally committed discriminatory (including retaliatory) acts, after all appeals are exhausted.
  • Update No FEAR Act training to comply with the new provisions of the Statute.
  • Train new employees within 90 calendar days of appointment, including employees who transfer from one Federal agency to another.
  • Train all existing employees on a training cycle of no longer than every two years.

We can help you with those training requirements. You know where to find us! [email protected]

The State of the Civil Service: 2022 Edition

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By Deborah Hopkins, January 11, 2022

It’s now 2022, and over the past 12 months there have been significant changes in the Federal civil service – common any time there’s a change in administration, but more so in this past year than any other year I can recall. As I’ve done for the past several Januarys, I’d like to share some highlights and happenings (and, unfortunately, non-happenings) in the world of Federal employment law.

Vaccine Requirement

On September 9, President Biden issued Executive Order 14043, which required all Federal employees to be vaccinated against COVID-19, unless they qualified for a legal exemption. These exemptions only apply when employees have a medical condition or sincerely held religious belief that prohibits them from being vaccinated. Even then, exemptions will only be granted if doing so does not cause an undue hardship on agency operations. The deadline to be “fully vaccinated” was November 22.

In December, the administration issued guidance telling agencies to wait until the new year to take any disciplinary actions involving a loss of pay (suspensions, demotions, or removals) for employees who fail to be vaccinated and don’t qualify for a legal exemption.

Now that it’s 2022, agencies are free to move forward with the steps of progressive discipline as set forth in the guidance.

This EO has gone largely unchallenged, whereas the vaccine requirement for Federal contractors, and those for employees outside the Federal government, have seen numerous Court challenges and injunctions.

Executive Orders

President Biden issued 77 Executive Orders in 2021, many within his first few days in office. Below are just a few that directly impact Federal employees.

  • 13985: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
  • 13988: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
  • 14003: Protecting the Federal Workforce (this EO rescinded President Trump’s three Federal workforce EOs from 2018, plus the EO on Schedule F designation)
  • 14043: Requiring Coronavirus Disease 2019 Vaccination for Federal Employees

MSPB

Last year, President Biden nominated three individuals to serve as members of the Merit Systems Protection Board.

In October, the nominees were voted out of committee, which means the next and final step is a vote from the Senate, where a simple majority could confirm the nominees.

As of this writing, that vote has not been scheduled and we have no indication when, or if, a vote will occur.

The last time there was a quorum at the MSPB was Jan. 7, 2017. The backlog of Petitions for Review has now reached over 3,600. If and when the nominees get confirmed they will have a LOT on the agenda besides the backlog, including:

  • Assessing cases under new performance requirements, as a result of the March 2021 Federal Circuit decision Santos v. NASA
  • Challenges to Administrative Judge authority, as a result of Lucia v. SEC
  • Interpretations on the newish VA accountability law
    • This includes the burden of proof in misconduct cases, as a result of the August 2021 Federal Circuit decision Rodriguez v. VA
  • Untangling the timeline in cases involving several Executive Orders and OPM regulations that were issued first under the Trump administration and then rescinded under the Biden administration

We can only hope these confirmations will occur soon. If so, we should start getting MSPB decisions in time for MSPB Law Week, March 28 – April 1. Register soon and save your seat.

EEOC

The Equal Employment Opportunity Commission has been very busy over the past twelve months, in the Federal sector and beyond. In addition to taking on an integral role in President Biden’s inclusion agenda, the Commission has also regularly provided updated guidance related to the COVID-19 pandemic and related EEO issues.

More recently, the EEOC cautioned employers against illegal reprisal related to vaccine exemption requests. We’re tackling that in the January 19 webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace.

For more, join us for EEO Counselor training later this month or EEOC Law Week in April. And be sure to check out Dan Gephart’s recent interview with EEOC Chair Charlotte Burrows about what agencies can expect in the world of EEO in 2022.

FLRA

The MSPB isn’t the only agency dealing with a backlog. The Federal Labor Relations Authority has several hundred Unfair Labor Practice cases pending review. In addition, two nominees for Authority members are still awaiting Senate confirmation. Sound familiar? Of course, the significant difference between these confirmations and the MSPB confirmations is that there are currently Authority members in acting positions, so there’s a quorum and decisions can still be issued.

In addition to quickly overturning President Trump’s union-related EOs, the Biden Administration has also taken several steps to increase the visibility of, and employee participation in, Federal unions. OPM issued management directives in October 2021 that instructed Federal agencies to highlight collective bargaining rights for Federal employees.

Plus, there have been numerous precedent-altering decisions over the past year that may be impacted after the anticipated change from a Republican majority to a Democratic majority. On top of that, we’re still waiting for the Senate to confirm the first permanent FLRA General Counsel in more than four years.

Join us for FLRA Law Week May 10-14, where the entire world of Federal Labor relations will be discussed in depth. By then, a lot of these issues should be much clearer.

OPM Regulations

Last week, OPM issued proposed new rules on 5 CFR Parts 315, 432 and 752, as a result of Executive Order 14003. Comments are open for the public until February 3.

OPM also proposed regulations for 5 CFR part 724, the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020, and comments on these regs [PDF] are due by February 4.

Next week, FELTG’s News Flash will share the takeaways from these proposed regulations.

Closing Thoughts

2022 looks to be quite interesting with a continued pandemic, anticipated returns to the workplace, and expanded telework for hundreds of thousands of employees. As always, we’ll keep you up to date when ever anything noteworthy occurs. [email protected]

Writing Performance Narratives: It’s Time to Do Better

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By Barbara Haga, January 11, 2022

For agencies that use a calendar year rating cycle, supervisors are in the throes of trying to put together performance narratives now. For some supervisors, this is the worst part of their responsibilities. Why is that?

Sometimes, supervisors don’t fully understand the mechanics of the systems. They don’t understand what the rating levels your agency selected mean and the standards and elements they have written don’t work very well, so trying to measure against them is terribly difficult.  Sometimes they don’t want to tell the employee something he or she doesn’t want to hear – whether that is that the performance is poor or that the performance isn’t at the top, but supervisors are expecting resistance from the individual being rated, or worse yet a rating grievance.

Sometimes, supervisors have been given a limit on who can be rated at what levels, even though that, of course, violates 5 CFR 430.208(c), and they are trying to make things come out right by upper management’s rules. Sometimes, supervisors don’t want to distinguish among employees. It’s easier to say that everyone is at a particular level and avoid the heat.

Problems with writing narratives are not generally a problem with the supervisor’s writing ability, although this argument has been advanced for years, particularly with pay for performance systems.  One comment raised against pay for performance systems was that with pay adjustments tied to ratings, then those who ended up with supervisors who were good at painting the picture of high-level performance would benefit financially throughout their careers, even though others whose performance was just as worthy would lag in their pay rates because reviewing boards wouldn’t judge the less well-written narratives as highly.

I don’t think it is an issue of writing ability. It certainly isn’t a literary contest. I think the problem is often that the supervisor has identified the level they want to “give,” and they are having trouble coming up with the examples to justify it. The horse and cart are out of order. The manager should first be looking at what was accomplished and then determine the rating level.

Level 5 Narratives

The place where this problem is easiest to see is with narratives written for Level 5 ratings. The problem isn’t the writing, it’s the content.

Here’s an example of a narrative written for a Level 5 rating of a GS-12 supervisor. The standard was a garden variety supervisory standard. See if you are convinced by what is written here that the supervisor was performing at Level 5. I have eliminated names of organizations and programs and also have added some notes throughout:

Employee established SOP manual. Volunteered and served on a Committee. [BH note: This was an employee welfare committee that was not relevant to the supervisory role.] Ensured all customers were in receipt of accurate documentation and understood the expectation of any documentation received from Branch. Re-enforced branch policies on how to perform all duties and tasks. Employee coordinated matters concerning internal and external customers of the agency and the office. In addition, coordinated with outside entities directly impacting the agency and office pertaining to the processing of certain actions. Branch increased closure output for CY 2020. [BH note: Much more information was needed here.] Employee ensured all production levels remained sufficient to accomplish the mission. Moreover, employee established standard letters for the staff to use when interacting with customers. Re-enforced importance of accuracy of information to the staff when executing office functions to best represent the branch. Employee continues to be a great asset to the leadership team. [BH note: This platitude doesn’t add anything in terms of documenting exceptional performance.]

So, what’s wrong? This description outlines what should be normal day-to-day supervisory duties. Ensuring that employees coordinate, that production levels are maintained, giving guidance to employees about proper execution of their duties – that should be what we expect supervisors to do. There’s no explanation of how this is exceptional. Here are some matters the supervisor’s supervisor should have addressed:

Developing SOPs: Why was this of particular importance? Were the employees engaged in this? If so, how employees participated or, if not, what the supervisor brought to this task that was exceptional?  Did having the SOP’s lead to benefits during the cycle or could the supervisor anticipate future benefits?

How was communication with customers enhanced? Why were the standard letters noteworthy? How did workforce participate or what did the supervisor do in personally developing them that was noteworthy?

Did any of these initiatives have direct benefits that could be identified?

The narrative almost reads as if the last supervisor wasn’t doing a particularly good job of fulfilling his or her supervisory responsibilities and now someone in the job is taking care of that, That doesn’t necessarily mean that the new supervisor is performing at Level 5.

The lost opportunity in this narrative was the line Branch increased closure output for CY 2020. There should have been documentation of the specifics. Did the closure rate increase by 1% or 10%? The rater should have talked about why this occurred and how the supervisor’s efforts led to that.  The closure rate going up could have been a result of the workers’ efforts, so we should see something about how the supervisor was instrumental in achieving the improvement. What did having more cases closed mean? Does that mean 1) customers got answers quicker, 2) getting answers delivered was cheaper, 3) the backlog was reduced, etc.? What obstacles did the supervisor’s leadership overcome?

The Last Word

I’ve written about this topic for several months now, so this is the last installment.  [Editor’s note: Read Barbara’s other stories on the topic here, here, and here.] If you are a rater or an advisor to raters, perhaps your resolution this year should be to do better.

In the illustration I provided, the rater should have done better. But the reviewing level should have, too. The reviewer should have returned the rating and asked the supervisor to fill in the gaps I identified. It ultimately comes down to the management chain emphasizing what they find important.