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

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June 2, 2025

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

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

Read on for our questions and her answers.

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

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

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

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

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

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

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

Related training:

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

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By Deborah J. Hopkins, May 15, 2025

 

Key facts:

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

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

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

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

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

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

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

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

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

Related training:

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

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By Deborah J. Hopkins, April 29, 2025

Key facts:

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

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

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

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

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

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

The Board continued:

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

Id.

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

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

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

Related training:

Federal Employment Law Terms of Art: The Right Definitions

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By Deborah J. Hopkins, March 4, 2025

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

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

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

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

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

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

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

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

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

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

Related training:

When Overzealous Management Becomes (Potential) Harassment

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By Deborah Hopkins, February 18, 2025

Quick facts:

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

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

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

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

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

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

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

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

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

Related trainings;

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

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Updated June 15, 2025

By Deborah J. Hopkins, February 14, 2025

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

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

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

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

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

Unless.

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

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

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

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

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

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

Related training:

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

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

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By Deborah J. Hopkins, February 12, 2025

Quick facts:

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

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

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

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

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

Id. at 2.

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

Claim 1, AWOL charge

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

Claim 2, Denial of EEO official time

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

Claims 3 and 4, COVID-related leave

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

Claim 5, Performance rating

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

Claims 6 & 8, Denial of advanced sick leave

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

Claim 7, Administrative duties assigned while on FMLA

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

Claim 9, Denial of telework

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

Claim 10, Reprimand

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

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

Related training:

The Good News: Filing Deadlines Matter

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By Ann Boehm, February 12, 2025

Quick facts:

  • When employees challenge agency actions, they must meet a filing deadline.
  • Missing the deadline is devastating to their case.
  • The deadlines differ, depending on whether they are for a grievance, discrimination complaint, or MSPB appeal.

In my very first real lawyer job – law clerk to a United States Court of Appeals judge – I quickly learned the importance of timely filings. My co-clerk was obsessed with combing through each case file to look for any jurisdictional issues. I recall when he rejoiced upon finding a party’s appeal to be untimely. The case would be dismissed as a result. The court did not have jurisdiction.

Lesson learned. Filing deadlines matter.

When an employee challenges an agency action – through a grievance, discrimination complaint, or Merit Systems Protection Board appeal – there are filing deadlines. Missing a deadline can mean losing a case.

Here are some key filing deadlines to consider:

Grievances: Parties must double-check the agency’s administrative grievance procedure or the collective bargaining agreement’s negotiated grievance procedures for the filing deadlines. The times for filing vary.

Discrimination complaints: An employee must contact an equal employment opportunity counselor within 45 days from the day the discrimination occurred, and then must file a formal complaint within 15 days of receipt of the counselor’s Notice of Right to File Formal Complaint. https://www.eeoc.gov/federal-sector/overview-federal-sector-eeo-complaint-process

Merit Systems Protection Board appeal: An appeal must be filed within 30 calendar days of the effective date of the action, if any, or within 30 calendar days after the date of receipt of the agency’s decision, whichever is later.  https://www.mspb.gov/appeals/appeals.htm

Whistleblower complaint: There is no specific deadline for reporting alleged whistleblower retaliation to the Office of Special Counsel. The general timing consideration for whistleblowers is whether the retaliatory action took place within a time that would lead a reasonable person to conclude that the disclosure contributed to the personnel action.  Typically, actions that occur within two years of the protected disclosure satisfy this test.

For agency advocates, finding a missed filing deadline can result in an easy agency victory.  For employees, missing a filing deadline can result in an unnecessary loss. Timelines matter. Paying attention to them matters. And that’s all Good News. [email protected]

Related training:

Supervisor Was Once Left Off Emails, Now She’s Getting Back Pay

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By Dan Gephart, February 12, 2025

Quick facts:

  • An assistant specialist failed to carbon copy her first-line supervisor on emails to agency leadership.
  • A commander ordered the supervisor to reveal how she found out she was being left off emails, but she refused.
  • The agency suspended the appellant but the MSPB overturned the suspension, finding the agency’s misconduct investigation of the appellant was motivated by whistleblower retaliation.

As if there weren’t already more than enough topics that divide us, I found another one recently. When scrolling through a social media site, I found a passionate debate about the “carbon copy” field on emails.

We are being overrun with emails, one poster claimed, and it’s because too many people are unnecessarily getting carbon copied on emails. Another poster called the claim “nonsense” and argued that “cc” is a great tool for keeping colleagues up to date.

I don’t know where the special assistant in Young v. Department of Homeland Security, 2024 MSPB 19 (Dec. 10, 2024) stands on the giant email debate, but we do know one thing: She communicated regularly with her supervisor’s boss without cc:ing said supervisor.

And that eventually led to a huge mess, including claims of reprisal and whistleblowing. We’re going to focus on the appellant in Young, but it’s so complicated we need to start with a cast of characters:

  1. The appellant. This person was a GS-15 supervisory field operation specialist and served as chief of staff to the commander.
  2. The special assistant. This individual reported directly to the appellant. She was the one who left the appellant off email communications.
  3. The mission support specialist. This person also reported directly to the appellant.
  4. The commander. This person supervised the appellant.

At some point, the appellant became aware she was being left off emails between the special assistant and agency leadership, despite previous directives to include her in all such communications. The appellant admonished the special assistant and directed her to draft a memorandum to explain how she would remedy the issue.

Instead, the special assistant told the commander what happened.

The commander reprimanded the appellant and ordered her to identify the individual who “provided the information to her concerning the special assistant’s communications.” The appellant refused, contending that the individual was a whistleblower.

In a separate action, the Commander reassigned the mission support specialist from the appellant’s supervision. Per footnotes in the decision, the record suggestions the mission support specialist is the person who told the appellant she was being left off emails.

Cue the complaints.

The appellant filed two complaints with the Office of Special Counsel (OSC), one related to the commander’s “verbal admonishment for insubordination for failing to obey his order to disclose the name of the employee who informed the appellant of the communication issues with the special assistant” and the other an allegation of improper favoritism toward the special assistant by reassigning her to another supervisor.

The appellant took her allegations to the agency’s Office of Inspector General (OIG). The appellant informed the commander, via a memorandum, that she felt he had committed prohibited personnel practices.

In a completely separate action, the mission support specialist filed an EEO complaint, alleging the commander improperly temporarily reassigned her and denied her training.

And now, the weaving of the web gets further tangled.

The appellant served as a management official in the mediation of the mission support specialist’s EEO complaint, which resulted in a settlement agreement. All it needed was the approval of a higher-level official.  That never came, as the commander informed the EEO office that the settlement agreement was not approved.

You still following?

The commander contacted the OIG, alleging the appellant did not inform him of the EEO complaint or discuss with him, as previously instructed, whether it was OK to engage in mediation. The commander further alleged the mission support specialist was a friend of the appellant and used the EEO process to “obtain training and a promotion for the mission support specialist in circumvention of agency rules.”

The commander’s action led to an investigation by the Office of Professional Responsibility (OPR). Soon after, the agency discipline review board proposed the appellant’s removal based on the charges of an appearance of a conflict of interest, failure to follow supervisory instructions, and lack of candor. The deciding official issued a decision sustaining the appearance of a conflict of interest and failure to follow supervisory instructions charges, but not the lack of candor charge. The official mitigated the penalty to a 15-day suspension. During this time, the commander was replaced, and the new commander reassigned the appellant.

All this led to the MSPB, where the appellant alleged the agency’s decision to suspend her for 15 days and reassign her constituted reprisal for her protected disclosures and protected activity. The administrative judge found the appellant met her burden of proving by preponderant evidence she made a protected disclosure and engaged in protected activity that was a contributing factor in the agency’s decisions to suspend and reassign her. However, the AJ also found the agency proved by clear and convincing evidence that it would have suspended and reassigned her absent her protected disclosure.

After considering the Carr factors, the Board was “not left with the firm belief that the agency would have initiated an investigation into the appellant absent her protected whistleblowing activity.” It continued:

Although the Commander had some sound reasons to request an investigation, his motive to retaliate was strong, and the agency failed to present evidence showing that it reported and initiated investigations into non-whistleblower employees for similar conduct. Therefore, we find that the agency failed to prove by clear and convincing evidence that it would have reported and initiated an investigation into the appellant’s conduct absent her whistleblowing. Accordingly, we grant the appellant’s request for corrective action with respect to her claim of a retaliatory investigation and her subsequent suspension.

The Board ordered the agency to cancel the appellant’s 15-day suspension and pay back pay, interest on back pay, and other benefits.

You’ve undoubtedly heard the phrase: This meeting could’ve been an email. Well, this case could’ve ended at an email, if only the appellant was carbon copied. [email protected]

Related training:

Is COVID Still Compensable? Welcome to the New Normal

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By Frank Ferreri, February 12, 2025

Quick facts:

  • An HHS optometrist came down with COVID-19 and felt confident she caught the virus at work.
  • Her claim was judged under new standards that made the bar for establishing COVID compensability tougher to meet than during the height of the pandemic.
  • The optometrist’s evidence consisted of a doctor’s statement that she had COVID-19 but did not include anything about a laboratory test, and ECAB found insufficient evidence and denied her claim.

Remember when everything about COVID-19 was dubbed the “new normal?” Since early 2023, as far as Federal workers’ compensation is concerned, coronavirus-related claims are just ordinary normal, as evidenced by J.W. and Department of Health & Human Services, No. 24-0028 [PDF] (Dec. 20, 2024). In this case, the Employees’ Compensation Appeals Board (ECAB) addressed the medical evidence it takes for an employee to show her COVID infection was a compensable workplace injury.

The employee, an optometrist, filed a traumatic injury claim. She alleged she sustained COVID-19 on Feb. 24, 2023, while in the performance of duty. She had initial body aches on that day and stopped working until March 6, 2023.  A doctor’s report confirmed the optometrist had a positive COVID-19 test on March 1, 2023.

The Office of Workers’ Compensation Programs (OWCP) converted the claim to an occupational disease claim because there was no clear, identifiable incident or incidents over a single day or work shift that she alleged to have caused the diagnosed COVID-19 condition. OWCP also informed the optometrist of the factual and medical evidence she needed to support her claim.

In response, the optometrist provided a statement noting:

  • “A few” conversations she had with a laboratory supervisor who also tested positive for COVID-19.
  • While performing optometry examinations, she was in close proximity to patients and sat within arm’s reach, and sometimes closer, for a prolonged period of time.
  • The agency’s optometry department had 119 patients in February 2023.
  • Her symptoms first occurred on Feb. 24, 2023, and for the two weeks prior, she did not leave her house other than to go to work.
  • No family members developed COVID-19.
  • The optometrist’s supervisor called her several times to advise the COVID positivity rate was “very high” at the employing establishment and recommended that she get tested.

OWCP denied the optometrist’s occupational disease claim, finding she had not submitted medical evidence sufficient to establish a diagnosis of COVID-19 in connection with the accepted employment exposure. The employee took her case before ECAB.

What’s the rule?

Per FECA Bulletin No. 23-02 (December 15, 2022), to establish a Federal workers’ compensation claim for COVID-19 diagnosed after Jan. 27, 2023, a claimant must provide:

  1. Evidence of a COVID-19 diagnosis.
  2. Evidence that establishes that the claimant actually experienced the employment incidents or factors alleged to have occurred.
  3. Evidence that the alleged incidents or factors occurred in the claimant’s performance of duty.
  4. Evidence that the COVID-19 condition was found by a physician to be causally related to the accepted employment incidents or factors.

That’s not all, though. A claimant must submit either of the following:

  1. A positive polymerase chain reaction or antigen COVID-19 test result.
  2. A positive antibody test result, together with contemporaneous medical evidence that the claimant had documented symptoms of or was treated for COVID-19 by a physician.

If no positive laboratory test is available, the claimant must submit a COVID-19 diagnosis from a physician, together with a rationalized medical opinion supporting the diagnosis and an explanation as to why a positive laboratory test is not available.

In support of her claim, the optometrist submitted a doctor’s report, which indicated the optometrist had a positive COVID-19 test. However, without explaining why a positive laboratory test result was unavailable, the doctor’s statement was insufficient to establish a COVID-19 diagnosis under the FECA Bulletin No. 23-02.

Thus, ECAB ruled against the optometrist. However, it granted her the opportunity to submit new evidence or argument with a written request for reconsideration.

When it comes to COVID, a workers’ compensation claim doesn’t enjoy the special status it once did. Also, there is no presumption an infection was due to employment. Instead, what a claimant should be prepared to do – and what an agency should defend on – is determine whether the evidence complies with FECA Bulletin No. 23-02. [email protected]

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