Ask FELTG: Do I Have MSPB Appeal Rights If I’m Subjected to a RIF?

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December 11, 2024

Thank you for your question.

This query came in from a Title V employee. For those readers not familiar, a RIF is a Reduction in Force, which is a non-disciplinary action an agency takes when it eliminates a person’s job because of a legitimate reason (such as budget).

The answer to your question will depend on your employment category.

If you are a career employee who is not a member of a collective bargaining unit, then you have the right to appeal the RIF to the Merit Systems Protection Board if you believe the agency did not properly follow RIF procedures (for example, you did not receive 60 days advance notification of the RIF). 5 CFR 351.901.

If you are a bargaining unit employee under 5 U.S.C. 7121, and RIFs are not explicitly excluded by your collective bargaining agreement, then you must use the negotiated grievance procedure to challenge the RIF.

If you are a member of the Senior Executive Service, then 5 U.S.C. 3595(c) provides you with MSPB appeal rights over a RIF, under 5 U.S.C. 7701. This applies to career appointees, whether they are probationers or post-probationers.

OPM has a helpful guide about RIF procedures, which are usually incredibly complex, labor-intensive, and time-consuming. It remains to be seen whether RIFs will be happening in any type of grand scale, but if so the sheer amount of work means it’s not likely to happen quickly. [email protected]

Have a question? Ask FELTG.

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.

And Now a Word With … MSPB Member Henry Kerner

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By Dan Gephart, December 3, 2024

A few days ago, we caught up with Merit Systems Protection Board member — and former Special Counsel — Henry Kerner as he closed in on the six-month mark of his term.

“That’s not a long time, but enough to get my footing,” Kerner said of his time at the Board. “Transitioning from a prosecutor to a judge is a shift in mindset, but it’s one I’ve really enjoyed. Back in California, I had colleagues in the DA’s office who made similar transitions, so I was somewhat familiar with the process. This is a great place to work — collegial, supportive, and focused on doing the right thing every day.”

I asked Kerner about the impact of the incoming administration on the functions of the MSPB.

“The MSPB continues its important work,” he said. “As Board members, we each have defined terms — mine runs through 2030. I’m sure other Board members feel the same way about their terms. Unlike some other agencies that might experience frequent turnover, it’s less common at independent agencies, though it’s always hard to predict the future.”

“Our mission remains steady,” he continued. “The merit principles endure and enforcing them is central to what we do. We’re committed to serving the Federal community and ensuring those principles are upheld.”

DG: First off, congratulations to you, the other members, and the agency for nearly wiping out the inherited  inventory. What’s the mood like there now? 

HK: It seems like people are pretty happy and relieved to have that burden lifted. There’s definitely a sense that we’ve reached a level of normalcy again. I really have to give credit to Ray Limon, Cathy Harris, my predecessor Tristan Leavitt, and, of course, the career staff. It’s been an all-hands-on-deck effort, so I want to extend my gratitude to everyone involved.

Having a full Board — not just a quorum — is a significant milestone for the MSPB and has been especially meaningful for staff who are new and have never worked under a fully staffed Board. Even during the period without a full Board, parties continued filing petitions for review, with about 500 new ones coming in every year. Now, a fully functioning MSPB can provide stability and predictability, which is beneficial for employees, agencies, and the entire Federal ecosystem.

DG: How has your stint as Special Counsel helped you in your transition to the MSPB?

HK: When I became Special Counsel, I found the office in pretty good shape. While I adjusted some priorities and made a few tweaks, the foundation was solid. Coming into the role, I didn’t have much experience in the Federal employment world. My background was primarily as a prosecutor — 18 years in California before moving to D.C. to work on Capitol Hill. That prosecutorial and congressional investigatory experience turned out to be great training for Special Counsel, but I had to build my knowledge of Federal employment law from scratch.

For instance, as a prosecutor, you develop shorthand for legal concepts — like “211” for robbery under the California penal code. Federal employment law has its own language, like “2302(b)” for prohibited personnel practices, which I had to learn on the job. By the time I transitioned to the MSPB, I had a much stronger grasp of that language and the nuances of Title 5. Having spent six years in this world, handling cases with the MSPB and interacting with other agencies, I was able to bring that experience to my new role, which has been incredibly helpful.

DG: How does your role at MSPB differ from your time at OSC?

HK: The job at OSC was primarily a management role — I was the head of the agency with significant management responsibilities. Here at MSPB, I’m a Board member, not the Chair, so I don’t have as much management responsibility.

DG: You bring a lot of expertise and experience on whistleblowing to the MSPB. What is something about the law or the Federal workplace that you only learned as a Board member?

HK: On the whistleblower side, I’m recused from many cases, given my prior role at OSC. Interestingly, some of the matters that come before the Board are areas where I don’t have much prior experience. For example, retirement cases — like disability retirement, FERS retirement, or law enforcement retirement — weren’t something I dealt with much while at OSC.

It’s been an adjustment. The things I know the most about, I now handle the least, and the things I know the least about, I’m doing the most. That said, with the volume of cases we handle, I’ve started to recognize patterns and develop familiarity with these new areas.

DG: Based on the cases you’ve reviewed, what stands out most when it comes to mistakes by Federal supervisors?

HK: I haven’t been at the Board long enough to make a comment on that, but one area that stands out is nexus cases. In misconduct cases, there must be a connection—or nexus—between the conduct and the employee’s duties or the agency’s mission. When the conduct occurs on duty or at the agency, the nexus is almost presumed. But when the behavior happens off duty, such as in a neighbor dispute or a car accident, the connection becomes less clear.

Sometimes, the behavior might not rise to the level of criminal charges but is still used by managers as a basis for discipline. These cases are complicated because they highlight the fine line supervisors must navigate. As Board members, one challenge we face is being limited to the record before us — we don’t always have the full context or history behind the situation.

Many cases involve long-standing workplace issues, but without a fully developed record, it can appear as though the incident is isolated. It’s crucial to ensure the record reflects the broader history and context. When the record isn’t as complete as it could be, it can make evaluating an adverse action difficult, and in some cases, the agency’s decision might not be fully supported by the available evidence.

DG: What trends are you noticing in new PFRs being filed? 

HK: Towards the end of my tenure at OSC, and now occasionally at MSPB, I’ve noticed political viewpoint discrimination cases starting to emerge. It’s not entirely surprising given the current political climate, but it’s something I observed at OSC and see sporadically here as well. While I wouldn’t label it a full-fledged trend yet, these cases have certainly caught my attention, and I wouldn’t be surprised if they become more prevalent over time.

[email protected]

Related training:

And Now a Word With … FLRA Member Anne Wagner

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By Dan Gephart, November 19, 2024

When Anne Wagner sat down to talk with FELTG over Teams late last month, it had been less than three months since she was sworn in as a member of the Federal Labor Relations Authority (FLRA). But this is far from Wagner’s first rodeo. She spent the previous nine years as Associate Special Counsel in the Office of Special Counsel. Before that, she was a long-time member at the Merit Systems Protection Board (MSPB), serving as vice chair.

And all that was preceded by nearly 20 years as an attorney for the American Federation of Government Employees (AFGE).

“Yes, I’ve had a long career all within the civil service framework. The one common thread in my experience at the MSPB, OSC and here at FLRA is how after 40 years or so that the Civil Service Reform Act and all the extensions within it have been in effect, you’d think everything that could’ve been decided would have already been decided. But it’s incredible how many cases present novel issues and fact patterns that are unusual. It continues to be a very vibrant area of law.”

“In all three instances, I have been struck by the extraordinary commitment of the staff at each agency to their respective missions, the talent that each agency has been able to acquire and sustain, and their dedication to providing high quality work.”

DG: How do your early days at FLRA compare to the similar time frame at MSPB and OSC?

AW: In both instances (FLRA and MSPB), I came in at a time when there were a lot of cases awaiting decision. So, I pretty much had to jump in the deep end of the pool. As daunting as that can be, personally, I find that suits me. I don’t have to think about this new experience. I have to get very focused very quickly on the job I was asked to do.

I’ve now had some time to step back and reflect. In all of the agencies, my colleagues have been wonderful and the cases themselves are interesting and challenging.

DG: What lessons have you learned from those previous jobs that you will apply to your role at FLRA?

AW: The most important lesson is the fundamental importance of active listening. By that I mean, both in terms of listening to staff and work colleagues, but also active listening in terms of the parties. Deep attention to the submissions they filed, or certainly in terms of any kind of communication with them. I think it’s so important to be able to fulfill what we’re charged to do, and that’s been a central guiding truth that has helped me throughout.

In terms of leadership, the primary requirement is to establish trust. I know that seems formulaic to say that. But trust ties in with active listening, that people really believe you’re listening to them, not necessarily agreeing with them, but actively taking in what they’re saying and that you mean what you say and say what you mean.

DG: What is a common thread throughout your career in labor-management relations? 

AW: What has remained the same is the dynamic relationship that agencies and unions have sustained over the course of the Federal Service Labor-Management Relations Statute. In some sense, that dynamic relationship has enabled both management and unions to adapt to the continuous and significant changes facing the Federal government and its workforce.

DG: What is the most pressing issue for the FLRA at this time?

AW: The budget. Our current budget for FY 24 is $29 million or so, which is the same amount of the FLRA’s budget in 2004. That’s not sustainable. We have, I think, half of the FTEs that we had back in 2004. And our caseload has increased. We’re understaffed and definitely would like to see the budget increased to be able to sustain if not add to our capacity to address the thousands of cases that come to us.

DG: Since 2021, FLRA scores on Best Places to Work have improved, and the agency regularly ranks high among smaller agencies. To what do you attribute these scores, and where is an area you’d like to see improvement?

AW: I haven’t been here long, but I can reasonably say that it’s leadership’s commitment to employee engagement. It’s the recognition that individual employee interest is aligned with the FLRA’s mission. To reiterate, the FLRA’s staff has a tremendous commitment to our mission. Also, the leadership instituted a labor management forum that was designed to specifically address employee concerns expressed through the FEVS.

That’s really important. We did something similar at OSC, and it really does move the needle — and not just artificially or superficially. When employees believe that the leadership is genuinely interested in making work life better, it changes how they feel, and that’s reflected in the FEVS.

DG: If you can impart one piece of wisdom to those who supervise bargaining  unit employees, what would it be?

AW: Going back to what I suggested before: Working toward mutual trust is essential. To recognize that unions and bargaining unit employees are as dedicated to achieving the agency mission as management. And keeping that in mind, to work from that foundation of commonality and sustain the trust. [email protected]

Related training:

Religion and LGBTQ+ Status: The Clash of Two Protected Classes

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By Deborah J. Hopkins, November 13, 2024

Quick facts:

  • LGBTQ+ status is protected under the umbrella of workplace sex discrimination.
  • Religion is also a protected category under EEO laws.
  • In a case where an employee raises a conflict between their religious beliefs and agency policy or requirement (such as the mandate to attend training about courtesy to LGBTQ+ individuals), the agency must consider whether exempting the employee would be an undue hardship.

For the past several years, there has been a lot of media attention focused on scenarios where a person requests a religious exemption from performing some aspect of their job because providing service to an LGBTQ+ individual violates their religious beliefs. It’s a topic that members of Congress have recently addressed.

Depending on where you live, state laws may differ, but the topic is (for now, anyway) settled in the Federal government.

Here’s a scenario for you:

Let’s say your agency is hosting a mandatory civil rights training to provide employees with information on how to treat all customers and employees with courtesy and respect. The training includes specific information on how this professionalism applies to LGBTQ+ individuals. The training also explains the anti-discrimination statutes that are applicable to all Federal employees of all categories (including age, race, disability, etc.).

Employee X claims he should be exempt from the LGBTQ+ section of the class because ”this subject matter contradicts my sincerely held religious beliefs that nobody is born gay. These are protected beliefs, expressly protected by Federal law.” This amounts to a request for a religious accommodation in the form of an exemption from attending the LGBTQ+ portion of the training.

How should the agency handle this request for exemption?

  1. Deny the request because believing people aren’t born gay is not a sincerely held religious belief.
  2. Grant the exemption as a religious accommodation because of the employee’s sincerely held belief.
  3. Grant the exemption but require the employee to take a written test on the content of the LGBTQ+ portion of the training.
  4. Deny the request because exempting the employee would be an undue hardship.

If you chose D, you agree with the EEOC in Barrett V. v. USDA/NRCS, EEOC App. No. 2019005478 (Mar. 7, 2024). The training did not “require employees to change their personal beliefs, but simply discusses and reinforces the [Agency’s] conduct rules requiring employees to treat one another professionally and to prevent and avoid discriminating against or harassing other employees or customers.” Id. at 3.

When a complainant alleges an agency failed to provide him with a religious accommodation, he must demonstrate that:

  • He has a bona fide religious belief that conflicts with his employment,
  • He informed the agency of this belief and the conflict, and
  • The agency enforced its requirement against him despite his religious beliefs.

Baum v. SSA, EEOC App. No. 01A05985 (Mar. 21, 2002).

The agency may deny the accommodation request if it shows that granting the accommodation would be an undue hardship.  Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977); see also Groff v. DeJoy, 600 U.S. 447 (Jun. 29, 2023) (undue hardship is shown when a burden is substantial in the overall context of an employer’s business).

In Barrett V., the Commission held that the complainant failed to show a conflict between his faith and the mandatory training:

Complainant failed to identify–even generally–a religious belief, observance, or practice that conflicted with the employment requirement that he attend mandatory civil rights training that, in fact, simply discussed and reinforced laws and conduct rules requiring employees not to discriminate against or harass others on numerous protected bases, including sexual orientation, and to treat customers and coworkers professionally …

Complainant does not explain how the training worked or even attempted to modify, criticize, or pressure him to change his religious observance or practice–whether before, during, or after the training.

Barrett V. at 18, 20.

In addition, EEOC’s Compliance Manual on Religious Discrimination specifically recognizes that it poses an undue hardship to provide religious exemptions to mandatory training when “[t]he training does not tell employees to value different sexual orientations but simply discusses and reinforces laws and conduct rules requiring employees not to discriminate against or harass other employees based on sexual orientation and to treat one another professionally.” Section 12-IV(B)(2) (Jan. 15, 2021).

The EEOC held that granting the complainant an exemption from attending training on courtesy, including courtesy to LGBTQ+ customers, would pose an undue hardship because the “training was designed to promote compliance with EEO laws and with the Agency’s standards of conduct with respect to customers and coworkers.” Id. at 26. While there is little question about what may happen to the Biden Administration’s Executive Orders on this topic in early 2025, this does not mean EEO laws or EEO training will go away. In fact, it will be more important than ever for agencies to ensure they are complying with the law when it comes to allegations of workplace discrimination. [email protected]

Related training:

The Good News: It’s Just as Easy to Say ‘Yes’ as It Is to Say ‘No’

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By Ann Modlin, November 13, 2024

Quick facts:

  • Agencies are often risk-averse when it comes to holding employees accountable for performance or conduct.
  • Balance the employee’s impact on the agency mission against litigation risks.
  • Explain to managers the pros and cons of moving on an employment action.

Empirically, it is just as easy to say “yes” as it is to say “no.” The word “yes” has three letters. The word “no” has two letters. Both are one syllable. The extra letter in “yes” is not a game changer.

If that is true, why do we regularly hear managers say things like this?

  • “We wanted to remove the employee for 60 days of AWOL, but counsel said no.”
  • “My employee is performing at an unacceptable level, but HR said no to putting them on a PIP.”
  • “The employee already has a letter of reprimand and a 14-day suspension, but my personnel attorney said no to removal on this latest misconduct matter.”

My first reaction to comments like this is to shake my head and empathize. The government, and not any individual, is on the hook for liability in a losing case.  But agencies are bizarrely risk averse. Even a litigation loss, which does not happen often, is not impacting on anyone financially. Why the fear?

The optimist in me is hopeful that perhaps, just perhaps, advisors need a change in mindset. Try saying “yes” instead of “no.”

Here are some things for advisors to contemplate.

  • If a manager is coming to you about a problem employee, presume that the manager is dealing with a legitimate problem. The employee is negatively impacting the mission. Trust managers. Listen to them. Avoid knee-jerk reactions.
  • Do not dwell on the one case the agency lost in 2006 when considering an employment matter in 2024. Figure out what went wrong in that 2006 loss and avoid doing that in 2024. But do not just say, “No, remember that 2006 case!”
  • Presume the employee is going to litigate. They have many ways to challenge adverse employment actions. So, prepare to win the litigation. Too often, the “no” answer is an effort to avoid litigation. I get it – litigation is hard. However, agencies win around 80% of the time at the MSPB and 97% before EEOC Administrative Judges (at least that was the number in 2020). Litigate. Win.
  • Trust your managers. They are the ones dealing with the problem employee every single day. Figure out how to help them. Get to “yes.”
  • Try to understand the negative impact of bad employees on a mission as much as you understand the risks of litigation.
  • Keep in mind, too, that counsel and HR specialists are advisors. Embrace that role. Tell managers the pros and cons of moving on an employment action, but stop defaulting to “no.” If they say they want to take the action, help them do everything correctly. (After all, OPM’s comments on 5 CFR § 752.403 regulations say that agency supervisors make these decisions after consulting with agency advisors.)

Advisors, try to switch your mindset. Break the habit of saying “no.” Use your great skills to put the agency on the path to win the employee’s challenge. “Yes” is not just easy to say and to do! And that’s Good News. [email protected]

Related training:

Kiss-*ss Email Meets a Kick-*ss Last Chance Agreement

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By Dan Gephart, November 13, 2024

Quick facts:

  • Traditional discipline isn’t always the most effective or efficient approach.
  • If writing a last chance agreement, make it clear that any future misconduct or unacceptable performance will be considered a breach.
  • The Reveles case provides a perfect example of the language to use in an LCA.

Who doesn’t love a redemption story? A real-life inspirational tale of an individual turning their life around gives us hope in our fellow humans. We like to believe in the best of people. It’s why we’re so willing to give people “one more chance.”

Until they let us down a second time.

In the world of Federal employment law, FELTG has always been a firm believer in the appropriate use of alternative discipline. If you think you have to remove the employee now because things just couldn’t get worse, wait until you screw up the details of the removal (or suspension or demotion). Alternative discipline lets you avoid those pitfalls. One of the most popular forms of alternative discipline gives the employee a chance to create his, her or their own redemption story. It’s the last chance agreement, and it’s simple.

  • The agency holds the employee’s penalty in abeyance.
  • If there is another act of misconduct or incident of unacceptable performance, the penalty takes effect. And, if the penalty is removed, the employee is removed immediately without appeal rights. (The employee can appeal a breach of the LCA but not the original penalty).
  • However, if there are no future incidents for the life of the agreement, the penalty will not take effect, and the proposed action will be canceled.

Win-win, as they say. The employee keeps the job, you retain an employee, and it’s another wonderful redemption story.

Unless they let you down again.

But that’s OK, as long as you pay attention to the details. Make it clear in the agreement that any future misconduct or unacceptable performance will be considered a breach.

I like to discuss Reveles v. DHS, DA-0752-08-0306-I-1 (2008)(NP) because it’s a great example of how to handle a breach of LCA. Also, it’s one of FELTG’s founding father Bill Wiley’s favorite LCA cases, one he calls the “kiss-ass” case.

Customs and Border Protection notified the appellant, a GS-12 supervisory border patrol agent, of its proposal to remove him on charges of misuse of government computer and lack of candor.  Four months later, the chief patrol agent sustained the charge of misuse of government computer. The agency then offered a last-chance agreement, where it agreed to hold the removal in abeyance for 24 months, provided the appellant agreed to abide by the terms. The appellant signed the LCA a few days later, admitting that his use of a government computer to send emails with inappropriate jokes was misconduct.

Six months after signing the LCA, the appellant sent an email to 39 co-workers in which he referred to another co-worker as a “kiss-ass.” And like that, the employee was removed. The agency called the misconduct “offensive and against Agency policy,” and noted it “demonstrated an unacceptable lack of professionalism and constitutes a violation of the Last Chance Agreement.”

The appellant, of course, filed an appeal. He claimed he was in compliance with the LCA because he meant to send the email to a close friend, who would not have been offended. He claimed the removal was too harsh for his level of misconduct

The judge was not persuaded. She noted the LCA’s language that “any violation of this agreement, including one instance of any type of misconduct, can be just cause for removal,” as well as the agent’s previous admission that misuse of a government computer was misconduct. [email protected]

Related training:

The Grand Bargain: Injured Employee Can’t Sue Agency

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By Frank Ferreri, November 13, 2024

Quick facts:

  • A VA nurse was injured on the job, and the injury was covered under FECA.
  • The nurse’s attempt to also sue the agency was barred by the “exclusive remedy” doctrine.
  • Due to the “grand bargain” that is workers’ compensation law, the employee was limited in recovery to the $2,108.04 she received via FECA.

The workers’ compensation system across the country, including the law that governs federal agencies, is often called the “grand bargain” because it guarantees – with some exceptions – that an employee’s work-related injuries will be compensated in exchange for an assurance that the employer can’t be sued for those same injuries.

Recently, Lopez v. U.S., No. 1:23-cv-03538 (D.D.C. Oct. 8, 2024), demonstrated the “exclusive remedy” doctrine in action.

The injury

A longtime registered nurse for the Department of Veterans Affairs suffered muscle strains, nerve damage, and chronic pain after a patient attacked her while she was on duty. The nurse filed a Federal Employees’ Compensation Act claim with the Office of Workers’ Compensation Programs. OWCP accepted most of the claim and paid the nurse $2,108.04 to cover her related medical costs.

The nurse then filed an administrative claim under the Federal Torts Claims Act, alleging the hospital was negligent in not warning her of the danger the patient posed and in not providing her with a security guard for her protection. The VA denied the administrative claim, stating that her earlier FECA claims precluded her FTCA claims. The nurse brought the FTCA case to court.

Exclusive remedy rule

FECA contains an exclusive remedy provision. In exchange for offering fixed compensation in lieu of litigation rights, the law protects the government from suits under statutes like the FTCA. A government employee covered by FECA cannot bring suit under the FTCA until the Secretary of Labor, in the form of the OWCP, has first found that FECA did not cover the employee’s injuries. FECA’s exclusive remedy provisions nixed the nurse’s FTCA claim in court.

“Plaintiff is a federal employee who seeks compensation for injuries she incurred at the VA,” the court wrote. “She filed a FECA compensation form with the OWCP, the OWCP determined that the FECA covered her injuries, and the OWCP provided her with compensation.”

In an effort to spare her case from the exclusive remedy barricade, the nurse alleged she experienced emotional injuries. The court noted that although “the state of the law concerning FECA coverage for emotional and psychological injuries sustained by federal employees remains unsettled,” it didn’t make a difference because once FECA applies to a claim, exclusivity attaches.

The court dismissed the nurse’s tort claim against the agency.

The statute

In reaching its decision, the court relied on the language of FECA and a longstanding precedent case applying it, as follows.

5 USC 8116(c): This statute provides that the “liability of the United States under [FECA] … with respect to the injury or death of an employee is exclusive and instead of all other liability.”

Daniels-Lumley v. U.S., 306 F.2d 7269 (D.C. Cir. 1962): In a case involving a federal worker who slipped on an icy sidewalk, the court spelled out that “unless [a] plaintiff’s injuries were clearly not compensable under the FECA … , we believe that the Secretary of Labor must be given the primary opportunity to rule.”

In other words, the “grand bargain” kicks in when an employee’s injury triggers FECA coverage, which in turn protects the agency from having to shell out additional damages that might be awarded in a tort action.

The lesson

If a federal employee’s injuries are compensable under FECA – and especially if she’s already been compensated through the operation of FECA – she will be barred from bringing a tort action under another federal statute, such as the FTCA.

On a related note, if the injuries rise to the level of a disability, the agency has an obligation to accommodate the employee’s medical restrictions if doing so does not cause an undue hardship. [email protected]

Related training:

 

The Board Offers Guidance, But Not Much Help, on the New Excessive Absence Standard

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By Deborah J. Hopkins, November 5, 2024

Quick facts:

  • In excessive absence cases, the MSPB now only considers absences beyond the date the agency warns the employee to return to work.
  • The Board did not instruct agencies how much absence post-warning would meet the “excessive” standard.
  • In a new MSPB case, the Board held that 200 hours of absence post-warning did not satisfy the excessive absence Cook criteria.

Remember earlier this year when the MSPB changed the requirements for excessive absence removals in Williams v. Commerce, 2024 MSPB 8 (Apr. 23, 2024)? If not, then you’ll want to update yourself here and then come back to this article for the latest development on excessive absence removals.

Generally an agency is not allowed to discipline an employee for being on approved leave, but an exception exists if the agency can show:

  1. The employee was absent for compelling reasons beyond his control;
  2. The absences continued beyond a reasonable time, and the agency warned the employee that an adverse action would be taken unless the employee became available for duty on a regular basis; and
  3. The position needed to be filled by an employee available for duty on a regular basis.

Cook v. Army, 18 M.S.P.R. 610 (1984).

Earlier this year the Board held in Williams that under element 2, an agency may not consider any absences the employee accrued BEFORE the agency warned the employee he would be removed if he did not return to work by a specific date; the agency may only count absences that occur AFTER the warning.

But Williams involved over a thousand hours of absence post-warning, so our biggest unanswered question after reading the case multiple times:

  • Exactly how many hours of absences will the Board determine is “excessive” post-warning?

Over a thousand hours, as in Williams, sure. But what about 800? 500? 200? Williams didn’t give us any indication where the lower end of the threshold would be, except when it alluded to Gartner v. Army, 104 M.S.P.R. 463 (2007), where the agency successfully proved an excessive absence charge when an employee was absent 333.5 hours during a 6-month period.

Which brings us to today. An employee was removed for excessive absence after she was absent for 1,400 hours over a one-year period. Butler v. FDIC, DA-0752-20-0060-I-1 (Oct. 22, 2024)(NP). In Butler, where the events occurred in 2017 and 2018, the Board retroactively applied Williams and found the agency failed to prove its excessive absence charge because only 25 days (or 200 hours) of straight absence occurred after the agency warned the appellant she was required to return to work. According to the Board:

Such a relatively short period of absence does not prove an excessive absence charge. Stated another way, 25 days of absence is not sufficient to establish that the appellant’s absence continued beyond a reasonable time, and therefore, the agency has not proven its charge of excessive absence. 

Williams at 4-5.

This is the time in the article I’d like to say, “But wait, there’s more!” Except there isn’t more. The Board left it at that and didn’t indicate ANYTHING about how many hours it would take for the agency to meet the “excessive” standard; it reversed the removal and ordered the agency to reinstate the employee with back pay.

Because the line here is not clear, and because we have mountains of case law that shows an agency can justify an AWOL removal for far fewer than 200 hours, at FELTG we are strongly considering moving away from the excessive absence approach altogether, and instead ordering the employee to return on X date, informing them they will be carried AWOL if they do not return, and effecting the AWOL removal after two weeks, if the employee does not report back.

If you have thoughts on this, or if your agency is taking a different approach, please feel free to share. [email protected]

Related training:

·     Feds Gone AWOL: What to Do When Employees Don’t Show Up, Feb. 6

Inappropriate Sexual Conduct Costs CBP $40K in Compensatory Damages

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By Deborah J. Hopkins, October 29, 2024

Quick facts:

  • A CBP officer intentionally exposed his penis to the complainant.
  • The agency found the complainant was subjected to a hostile work environment based on that and other incidents.
  • Additional legal research shows the agency removed the harasser for his misconduct.

No matter how much awareness we bring to the topic, there are still far too many instances of inappropriate sexual conduct in the workplace. And when the conduct is not addressed promptly, it can cause continuing harm to the victim.

Consider the case involving a Customs and Border Protection (CBP) officer, in Buffalo, NY. Lelah T. DHS/CBP, EEOC Appeal No. 2021001401 (Aug. 16, 2022). The agency issued a FAD finding the complainant was subjected to a hostile work environment based on sex when:

  • On November 30, 2016, a co-worker (CW-1) pulled down his pants to reveal his camouflage boxer shorts to the complainant.
  • On March 5, 2017, co-worker 2 (CW-2) called the complainant’s name so she would turn her head and look at CW-1, who was exposing his genitals to her.
  • In August 2016, CW-1 and co-worker 3 (CW-3) had conversations in the office about pulling out their genitals in the office and having erections during work and training sessions, and CW-1 said he “worked up a chub” and “put it on the desk” for CW-3 to look at.
  • On August 19, 2017, CW-1 told Complainant he was upset that he was investigated by the Office of Inspector General (OIG) regarding her accusations that he was trying to intimidate, threaten, and discourage her from pursuing her complaints after management issued CW-1 a “cease and desist” memorandum to stay away from Complainant, effective May 5, 2017.
  • In or around August 2017, Complainant was forced to remove herself from the Tactical Terrorist Response Team (TTRT) and enter the bargaining unit to bid on a new position due to the harassment by CW-1.

Id. at 1-3.

In her complaint and signed declaration, the complainant said that as a result of the harassment, she experienced “extreme emotional distress and humiliation,” that “she felt humiliated and anxious as a result of the harassment,” and that “she was concerned for her overall health and safety.” Id. at 13.

The complainant requested, among other things, $125,000 in non-pecuniary compensatory damages, but the agency awarded $40,000 and the EEOC concurred with that amount. The award may have been higher, except some of the statements the complainant submitted in support for her $125,000 request were not signed, and the complainant’s personal statement was also not submitted.

If you’re wondering what happened to the harasser, the case doesn’t tell us. Because EEO cases use pseudonyms, we don’t know his identity. However, the decision does mention “an MSPB proceeding related to the removal of Complainant’s harasser” in relation to an attorney fees request. I surmised that CBP must have removed the harasser, and he must have appealed.

So, I did a little research, which led me to a case involving a Buffalo, NY-based GS-12 CBP officer’s removal for “exposing [his] penis in the workplace.” Burbas v. DHS/CBP, NY-0752-18-0222-I-2, p. 1 (June 13, 2024)(NP). I had a suspicion the appellant might be the harasser from Lelah T., but the NP decision was a bit vague on the details, so I went to the Burbas initial decision (Aug. 26, 2019). After reading the facts there, I am 99 percent certain this is the discipline side of Lelah T. (At least, I hope this didn’t happen more than one time in the Buffalo sector – and once was one too many times.)

Despite the appellant’s claim he meant his conduct as a joke, the AJ and the Board both upheld the removal. [email protected]

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Do Douglas Factors Even Matter When Misconduct Involves Licking Child’s Feet?

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By Deborah J. Hopkins, October 15, 2024

Quick facts:

  • An employee pleaded guilty to a fourth-degree sex offense for “unconsented sexual contact” with a minor, and second-degree assault.
  • The ensuing publicity identified him as a NOAA employee, and the agency removed him based on two specifications of Conduct Unbecoming a Federal Employee.
  • The agency did a thorough and effective Douglas factor analysis.

While you’ve doubtless come across dozens, even hundreds, of removal cases involving a Conduct Unbecoming a Federal Employee charge, have you ever read a case where the conduct involved a Federal employee luring a 13-year-old boy into his house, taking him to a “room of pain,” and licking the child’s bare feet and toes? Sadly, there is a first time for everything. Soroka v. Commerce, DC-0752-20-0180-I-1 (Aug. 30, 2024)(NP).

The appellant, a GS-14 physical scientist for the National Oceanic and Atmospheric Administration (NOAA), was the Winter Weather Program Lead in the agency’s Severe, Fire, Public, and Winter Weather Services Branch. Id. at 2. The agency learned about his conduct only after he pleaded guilty to two offenses involving the child (fourth-degree sex offense for “unconsented sexual contact” with a minor, and second-degree assault). Id. He was also placed on the Maryland Sex Offender Registry.

The ensuing publicity identified him as a NOAA meteorologist, and the agency removed him based on two specifications of Conduct Unbecoming a Federal Employee:

  1. On or about and between July 15, 2017, and July 15, 2018, you had unconsented sexual contact with a minor of whom you had temporary care and custody, and responsibility for supervision.
  2. On or about and between July 15, 2017, and July 15, 2018, you assaulted a minor in the second degree.

Id. at 3.

He appealed his removal, claiming lack of nexus, but the AJ affirmed the removal. The Board upheld the AJ, but the final order was light on details, so I visited the initial decision (ID) for more information – and I discovered an absolute master class in Douglas factors preparation and deciding official (DO) testimony. I’ve left out citations and paraphrased some material for ease of reading, but all the below details on Douglas can be found in the ID.

Douglas factor 1: Nature and seriousness of the offense

The appellant’s misconduct was extremely serious. His position required him to demonstrate credibility and integrity. His misconduct violated the public trust and placed the agency’s reputation at risk.

Douglas factor 2: Job level and type

His position as the National Winter Weather Services’ program lead was a highly visible position within the agency. The position required the appellant to perform leadership functions for a key NWS program at a national level, and his role involved significant interactions with both NWS partners and the public.

Douglas factor 3: Past discipline

The appellant had no prior discipline.

Douglas factor 4: Work record performance

The DO considered the appellant’s above-average work record, and his length of service of over 25 years.

Douglas factor 5: Trust and confidence

The DO concluded the egregiousness of the appellant’s misconduct outweighed any mitigating factors. The appellant could no longer satisfactorily perform his duties because he could not publicly represent the agency in light of the notoriety of his misconduct. In addition, the appellant’s misconduct demonstrated a clear lack of judgment, which exacerbated the loss of trust and confidence.

Douglas factor 6: Consistency of discipline with comparator employees

The appellant identified a potential comparator who was also on the sex offender registry, in another state, who was not disciplined. But the proposing and deciding officials in this case were not involved in any disciplinary actions involving the other employee and were not even aware of the potential comparator case until two weeks before the appellant’s hearing – long after the decision to remove was made. In addition, the potential comparator did not hold a leadership role and worked primarily in internal programs, so he was not a proper comparator.

Douglas factor 7: Table of penalties

The penalty was consistent with the agency’s table of penalties.

Douglas factor 8: Notoriety and agency reputation

The appellant’s misconduct became highly notorious when it was widely publicized in local, national, and international media sources, such as Newsweek. In fact, the agency first became aware of the appellant’s criminal charges through media reports, which included the appellant’s photo, name, and his position with NOAA. This notoriety was highly damaging to the appellant’s credibility and to the agency’s reputation. In addition, the appellant’s photo and personal information were listed on the Maryland Sex Offender Registry, which has the serious potential to detract from the mission of NWS and NOAA, if anyone followed up on the story.

Douglas factor 9: Clarity of notice

The DO considered the clarity upon which the appellant was on notice that his misconduct violated any rules and testified that any reasonable human adult would know such misconduct was improper. The decision letter included the statement, “As a citizen and a public servant, you are aware that assault and sexual abuse of a minor is wrong and will not be tolerated. Even absent specific notice from the Agency, you should have known that the misconduct you engaged in was inappropriate; however, you knowingly engaged in those activities. This reinforces the point made above regarding your lack of judgment.”

Douglas factor 10: Potential for rehabilitation
The appellant did not demonstrate the potential for rehabilitation because he lacked accountability and blamed others, by referring to the victim as a troubled child and blaming an overzealous press for publicizing the story.

Douglas factor 11: Mitigating circumstances

No additional mitigating factors were identified besides the appellant’s lack of disciplinary history, 25 years of service, and above-average performance.

Douglas factor 12: Alternative sanctions

The DO testified that he did not take this decision lightly and he did not take any pleasure in this process. However, given the egregiousness of the appellant’s behavior and the lack of alternate, effective sanctions to appropriately address the misconduct, he had no alternative but to remove the appellant from his position.

This could be a model lesson for DOs for decades to come. I have to give kudos to Anna Bodi, the attorney of record on the ID, for so thoroughly preparing the DO. Even though the misconduct was egregious, it’s risky for an agency to not consider all the mitigating factors (if you don’t believe me, see this recent article about how an AJ reversed the removal of a law enforcement officer who bit his wife during a fight). [email protected]

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