The Good News: It’s Simple, Proposing Official Should Do Douglas

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By Ann Modlin, October 15, 2024

Quick facts:

  • We are often asked by FELTG customers: Who should do the Douglas factor analysis?
  • We recommend the proposing official cover all 12 factors in the worksheet and attach it to the proposed discipline.
  • The deciding official should review the proposing official’s Douglas analysis and the employee’s response.

It’s time for another edition of “Douglas and the Proposing Official.”  (Why does that sound like it could be a sitcom? I mean, who would have thought Parks and Recreation would be a thing?)

We have written a lot of articles about this topic, but questions still arise regularly about whether the proposing official, the deciding official, or both, should do the Douglas analysis. Here’s the answer:

  • The proposing official should do the Douglas. We recommend covering all 12 factors in a worksheet attached to the proposal.
  • The employee then has an opportunity to meaningfully respond to the both the charge(s) and proposed penalty.
  • The deciding official should review the proposing official’s Douglas analysis and the employee’s response, but not create a new, independent Douglas analysis in the decision.

It comes down to our good old friend due process.

Due process entitles the employee to notice of why discipline is being proposed, a meaningful opportunity to respond, and an impartial decision. Penalty is a key aspect of discipline, so due process applies.

The Douglas decision itself, way back in 1981, stated “aggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to the alleged factors . . . .” Douglas v. VA, 5 MSPR 280 (1981) (emphasis added). The Proposing Official should include the Douglas analysis in the proposal so that the employee has an opportunity to reply.

I know some of you are thinking, “But Douglas says ‘aggravating factors,’ and not mitigating factors, have to be in the proposal.”  Um, technically it does say that, but there can be a fine line between aggravating and mitigating factors. Better to include all of them in the proposal, just to be safe.

At one point, even the MSPB got confused about whether due process applied to penalty, so the Federal Circuit expressly stated that due process applies to the penalty part of discipline in Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011). Ward noted “the importance of giving an employee notice of any aggravating factors supporting an enhanced penalty as well as a meaningful opportunity to address ‘whether the level of penalty to be imposed is appropriate.’” Id. (citing Stone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir. 1999)).

There’s also a practical side to all of this. Having the proposing official do the Douglas analysis, with the deciding official reviewing and assessing that analysis, also goes to the heart of what we at FELTG emphasize in ALL of our training – it keeps things simple. If the deciding official agrees with the proposing official’s Douglas analysis, the decision can say, “I have considered the penalty factors identified in the proposal, and I concur.” Done. Case closed.

Easy, right? That’s Good News! [email protected]

 

Complaint Doesn’t Fly, Thanks to a Swift and Effective Reply

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By Dan Gephart, October 15, 2024

Quick facts:

  • An air traffic control specialist and an agency operations supervisor entered a consensual sexual relationship.
  • The specialist alleged sexual harassment and discrimination on the bases of sex (female) and reprisal for prior protected EEO activity.
  • An EEOC AJ specifically noted the supervisors’ “swift” actions to investigate the allegations and minimize harm to the complainant.

When faced with an allegation of sexual misconduct, there are two words you must remember as you contemplate action — swift and effective. While reacting wildly is not condoned, hesitation is imprudent and ill-advised. It could open up liability to the agency, and, even worse, leave an employee in a dangerous situation.

The recent EEOC decision Annice F. v. Buttigieg, EEOC App. No. 2022004327 (Aug. 22, 2024), underscores the importance of the aforementioned advice.

An air traffic control specialist filed a formal EEO complaint alleging the agency subjected her to sexual harassment and discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity. It started when an agency operations supervisor (AOS) was assigned to work alongside the complainant’s team. The AOS was not the complainant’s supervisor. However, due to the nature of his training and staff shortages, AOS sometimes provided operational instructions to the complainant and others on her team.

Soon after the AOS started working with the complainant, they began a consensual sexual relationship. However, that relationship ended abruptly when the complainant learned the AOS lived with his girlfriend and had multiple other sexual partners.

Later that year, the complainant told two supervisors of her intention to file a discrimination claim. She provided details of the relationship, explained the difficulty of working alongside the AOS, and shared concerns for her safety.

Now, imagine you’re one of these two supervisors, what would you do?

The supervisors told the complainant to contact local law enforcement, and advised her the agency would conduct an immediate investigation. That very same day, one of the supervisors reported the complainant’s allegations and prior relationship with the AOS to the agency’s Accountability Board in order to initiate a prompt investigation about sexual misconduct, potential gun violence, and involvement by local law enforcement for the safety of all parties.

Meanwhile, that same supervisor instructed management officials to immediately limit interactions and work projects between the AOS and the complainant. Soon after, the AOS was moved to a different team.

The supervisor also investigated the complainant’s claim that the AOS had guns in his vehicle on Federal property. No guns were found in the AOS’ vehicle, and the complainant admitted she never saw guns in his vehicle at work, just that he owned guns and stated he kept them in his vehicle.

Several days later, the complaint contacted a crisis hotline. She told her supervisors, who then sought guidance from the agency’s medical division. Citing the high pressure and national security implications of the air traffic control specialist position, the agency’s flight surgeon temporarily terminated the complainant’s medical clearance. A medical diagnosis is not needed to terminate clearance, only a concern that the employee’s physical or mental state could impact the performance of their job. Shortly after the complainant’s clearance was reinstated, she filed the claim.

The complainant alleged:

  1. She was harassed and subjected to a hostile workplace environment, resulting in disparate treatment.
  2. She was seduced, lied to, and coerced into having sex with a manager, under the belief that she was going to have a romantic relationship with him. Instead, however, the AOS used his position to convince her to have sex in order to benefit his own work environment, including assaulting and raping her on several occasions.
  3. She saw guns in the AOS’ car at work; however, nothing was done, and the guns were not removed.
  4. She went to the police and was told that she was not in any imminent danger; thus, she was unable to file a restraining order; and the AOS had since been moved to another facility.
  5. The agency removed her medical clearance as a result of her filing this EEO claim.

The EEOC AJ issued a bench decision that found the evidence established the agency took appropriate, prompt, corrective action in response to the complainant’s reports of sexual misconduct by the AOS and a potential gun violation on Federal property. Regarding the allegations of rape, the complainant was directed to local law enforcement.

The evidence also reinforced that the AOS was not a supervisor who was empowered to hire, fire, reassign, or take any other employment action against the employee, or make any decision that would affect her benefits or terms and conditions of her employment.

The AJ specifically noted the supervisors’ “swift” actions to investigate the allegations and minimize harm to the complainant. The complainant appealed, and the EEOC concurred with the AJ.

But it was not only the swiftness of the supervisors’ actions, but also the effectiveness, that EEOC found appropriate. This is particularly critical when the allegations include firearms on workplace grounds and sexual assault. [email protected]

Related training:

 

Keep Accommodations on the Radar After Workers’ Comp Claims

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By Frank Ferreri, October 15, 2024

Quick facts:

  • A mail carrier had a string of injuries over several years that resulted in workers’ compensation coverage and absences from the job.
  • The carrier’s supervisor repeatedly misclassified her time off and allegedly made derogatory remarks about her disability being a “lifestyle.”
  • Due to a lack of evidence about accommodations and the carrier’s status as a “qualified individual,” the court dismissed her Rehabilitation Act claim.

When a workers’ compensation scenario arises, chances are an employee has a disability that could find coverage under the Rehabilitation Act and be subject to that law’s requirements regarding reasonable accommodations.

However, an on-the-job injury doesn’t automatically trigger accommodation duties with no other documentation. As the court in Johnson v. DeJoy, No. 23-2342 (D.D.C. Sept. 17, 2024) explained, the employee still has to show an accommodation exists that it will allow her to perform the essential functions of her job.

Many years, multiple injuries

A full-time mail carrier was involved in an incident on the job where she reported that she was “wrongfully accused of hitting a customer with her mail truck and leaving the scene.” According to the carrier, she was sent home for about eight months before being offered her job back and was not paid for “the pain suffered” as a result of the incident.

After she returned to the job, and while she was two months pregnant, the carrier fell down a flight of stairs while delivering mail. She injured her lower back and tailbone, which required medical treatment and resulted in the loss of her pregnancy.

Because of the accident, the carrier suffered from “a severely depressed mood, anxiety, and symptoms of post-traumatic stress.” She was eventually diagnosed with bipolar disorder and post-traumatic stress disorder. The carrier sought FMLA leave, which was denied.

Later, the carrier took leave approved by the Office of Workers’ Compensation Program (OWCP). When she returned to work, she requested reasonable accommodations. According to the carrier, the agency responded “by creating a hostile work environment and retaliating against” her and by refusing to sign and return her leave slips and improperly coding her OWCP-approved leave as AWOL and LWOP.

After contacting an EEOC counselor, the carrier received and signed an Offer of Modified Assignment but did so “under protest,” as her new schedule interfered with her childcare responsibilities.

Eventually, the carrier and the agency reached a settlement agreement under which her supervisor would sign and return her leave slips and correct leave that had been improperly recorded.

The carrier returned to work. Within a few days, she was chased by a dog, fell, and injured her right wrist, shoulder, lower back, and both knees. After some delay, the OWCP accepted her request for continuation of pay (COP). Again, however, the supervisor improperly coded her absences as LWOP or annual leave.

Human resources informed the carrier her health benefits had been terminated because she had not remained in a pay and duty status for eight pay periods, prompting another EEOC complaint and instruction from OWCP for the agency to provide the carrier with a job that complied with her medical restrictions.

The carrier returned to work and, on several occasions, was required to perform work in violation of her medical restrictions. Again, the carrier had to take leave and again had her absences misclassified.

Following an alleged statement from the supervisor that the carrier’s disabilities were a “lifestyle,” the carrier brought a Rehabilitation Act claim, alleging a failure to accommodate.

The carrier’s case

Under the Rehabilitation Act, agencies must make reasonable accommodations to the known physical or mental limitations of a qualified individual with a disability. To be a “qualified individual,” an employee must be able to perform the essential functions of a job with or without reasonable accommodation. While a determination that an employee is not a qualified individual is rare on a motion to dismiss, it can be appropriate where an employee has not indicated that she could perform the essential functions of her job and has not identified a reasonable accommodation that would allow her to do so.

The court granted the agency’s motion to dismiss the carrier’s failure to accommodate claim. She failed to allege what her essential functions were and to present relevant reasonable accommodation options to the court.

“Rather, [the carrier] merely states that a ‘reasonable accommodation would have allowed her to fulfill all essential functions of her job,’” the court wrote, explaining that such a statement was “a legal conclusion that the court need not accept as true.”

The court noted the only evidence the carrier presented as to qualification was her assertion that she was “otherwise qualified for her position,” due to her long and successful employment history.

The court interpreted this argument as the carrier asking it to infer from her employment history that she could perform the essential functions of her job with or without reasonable accommodations.

Lesson for agencies

The court wrote that “it is unable to make this inference,” due to a lack of evidence on whether and to what degree she was impaired, and how the nature and severity of her impairments evolved over the course of about 12 years. Thus, the court found the carrier had not stated a Rehabilitation Act claim.

When an employee is dealing with matters involving workers’ compensation, it is not a bad idea to consider whether accommodations might be in order. At the same time, an agency will not be at fault for breakdowns in the interactive process when an accommodation has not been proposed, so as to allow an employee to perform the essential functions of her job or desired role.

Similarly, if a case ends up in court, and an employee doesn’t have the details on what makes her qualified for her job, the court will have a hard time moving ahead with the case. The agency didn’t do itself any favors by continually mixing up how the employee’s time off was recorded (or not, as it were). The court doesn’t tell us much about the emotional backstory of the case, but it’s not hard to imagine an employee feeling frustration from the kinds of repeated mistakes the carrier had to deal with.

Remember, COP is an entitlement for Federal employees injured on the job in which the agency continues to pay an employee her regular pay during a period of disability for up to 45 days. In this case, the mix-up interfered with that benefit. As a result, it affected the carrier’s finances.

Mistakes happen, but when they keep happening, it can turn the temperature up on a dispute and bring a case into court that might have had a quicker, easier resolution. [email protected]

Related training:

Indefinite Suspensions: When an Agency Suspends Access to Classified Information

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By Deborah J. Hopkins, September 24, 2024

We have been discussing indefinite suspensions in a series of articles over the past few months. As a reminder, an agency may indefinitely suspend an employee in three instances:

1. The agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed;

2. The agency has legitimate concerns an employee’s medical condition makes his continued presence in the workplace dangerous or inappropriate; and

3. The agency has suspended the employee’s access to classified information and the employee is required to have access in order to do his job.

Sanchez v. DOE, 117 M.S.P.R. 155, ¶ 10 (2011).

If you missed them, check out the previous articles on indefinite suspensions for criminal conduct and medical conditions.

Today, we’ll focus on the third instance, indefinite suspensions when an employee’s security clearance has been suspended.

What types of things might cause an employee to lose a security clearance?

Despite common misconceptions that anyone who loses a clearance must be attempting to sell national security secrets to a foreign adversary, a number of factors (known as the adjudicative guidelines) can impact an employee’s clearance – and not all would constitute misconduct. The 13 guidelines [PDF] below identify the broad areas that impact an employee’s potential for a clearance, and include detailed information about why each of these areas is a potential concern, which conditions could raise a concern and be disqualifying, and which conditions could mitigate security concerns.

  • GUIDELINE A: Allegiance to the United States
  • GUIDELINE B: Foreign Influence
  • GUIDELINE C: Foreign Preference
  • GUIDELINE D: Sexual Behavior
  • GUIDELINE E: Personal Conduct
  • GUIDELINE F: Financial Considerations
  • GUIDELINE G: Alcohol Consumption
  • GUIDELINE H: Drug Involvement and Substance Misuse
  • GUIDELINE I: Psychological Conditions
  • GUIDELINE J: Criminal Conduct
  • GUIDELINE K: Handling Protected Information
  • GUIDELINE L: Outside Activities
  • GUIDELINE M: Use of Information Technology

What proof does an agency need to justify an indefinite suspension when an employee’s access to classified information has been suspended?

As we have discussed previously, the four elements the Board looks for when it reviews indefinite suspensions are:

(1) The agency imposed the indefinite suspension for an authorized reason;

(2) The suspension will have an ascertainable end (an event that will end the suspension);

(3) The indefinite suspension has a nexus to the efficiency of the service; and

(4) The indefinite suspension is reasonable under the circumstances.

Hernandez v. Navy, 120 M.S.P.R. 14, ¶ 6 (2013). The authorized reason here is the suspension of a security clearance pending a determination about revocation, and the lead case is Jones v. Navy, 48 M.S.P.R. 680 (1991).

How are indefinite suspensions related to security clearances different than the other types of indefinite suspensions?

When it comes to security clearance suspensions and revocations, the Board does not have the authority to review the underlying merits of an agency’s decision to suspend or revoke an employee’s access to classified information. Navy v. Egan, 484 U.S. 518, 530-31 (1998). The grant of a security clearance to a particular employee is a sensitive matter and the denial of access to classified information is entrusted to the sole discretion of the agency; the Board also lacks the authority to review any argument related to the nexus between the employee’s alleged conduct and the suspension of their security access. Id. at 536.

Unlike most other MSPB appeals, the Board is also precluded from reviewing allegations of prohibited discrimination and reprisal when such affirmative defenses relate to the revocation of a security clearance. Pangarova v. Army, 42 M.S.P.R. 319, 322 (1989).

What can trigger the end of the indefinite suspension?

There are three options:

1. After the investigation, the agency does not revoke the employee’s security clearance and the suspension of access to classified information is lifted. If this happens, the employee should be promptly returned to duty.

2. After the investigation, the agency revokes the employee’s security clearance and informs the employee in writing. In this case, the employee may accept the result and resign or retire, which could end in the indefinite suspension. If the employee wishes to appeal the revocation of their clearance, typically during this appeal, the employee would remain on indefinite suspension pending the outcome of the appeal.

3. If the employee does not appeal the revocation but also does not resign or retire, or if after appealing the revocation, the revocation stands, the employee should be given a notice of proposed removal for failing to maintain a security clearance. Jones v. Navy, 48 M.S.P.R. 680, 683 (1991).

How should an agency handle removing the employee whose clearance has been revoked?

The employee obviously cannot stay in the position if a clearance is required. While reassignment to a position that does not require a clearance may be an option (depending on the underlying reason for the revocation), below are the elements required to justify removing an employee for failing to maintain a security clearance:

  1. The agency determined that the position required a security clearance,
  2. The agency revoked or denied the clearance,
  3. The agency provided the employee adverse action rights, and
  4. The deciding official considered reassignment to a non-sensitive position.

Egan, 484 US at 521-522. On element 4, unless the agency has a statute or regulation that creates a substantive right to reassignment, the Board may not require the agency to reassign the appellant to a position that does not require a security clearance or access to classified information. See Ryan v. DHS, 793 F.3d 1368 (Fed. Cir. 2015).

One final note, removing an employee for failing to maintain a security clearance is a nondisciplinary action. As such, the Douglas factors are not required. Munoz v. DHS, 121 M.S.P.R. 483, ¶ 15 (2014).

[email protected]

Related training:

And Now a Word With … OSC’s Hatch Act Unit Chief Ana Galindo-Marrone

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By Dan Gephart, September 17, 2024

Televised debates and annoying political advertisements can only mean one thing: It’s election season again, and the Office of Special Counsel’s Hatch Act Unit is busier than the restaurant kitchen in TV’s fictional The Bear.

In recent years, the most-common Hatch Act violations have involved the use of social media to engage in on-duty political activity. But each election season seems to bring some new surprise.

Ana Galindo-Marrone, Chief of the Office of Special Counsel’s Hatch Act Unit, generously took some time from her hectic schedule to answer our questions.

DG: Regarding inquiries or violations, what is a new issue that you hadn’t dealt with before?

AG: OSC has recently updated its position on Federal employees displaying political candidate merchandise after the election. We previously advised that once an election is over, it is okay to display such items. However, Special Counsel [Hampton] Dellinger has instituted a year-round ban on displaying materials related to a current or contemporaneous political figure no matter if it’s before or after an election. A current or contemporaneous political figure is an incumbent Federal elected official and/or someone who has ever received a political party’s nomination for President of the United States and is still living.

We also receive many inquiries about whether issue advocacy violates the Hatch Act, which we advise would generally not violate the Hatch Act, absent any accompanying message in support of a political candidate, party, partisan political group, or other electoral-focused message.

DG: Here’s an example of an advocacy issue – the Israel-Hamas war. Have you received any questions about it and, if so, what is your guidance?

AG: OSC has received numerous questions regarding whether the Hatch Act restricts Federal employees from expressing their views about the current conflict between Israel and Hamas and other related topics. In response, OSC issued an advisory opinion to inform Federal employees of when and how the Hatch Act might apply to such speech.

The relevant provision of the Hatch Act prohibits employees from engaging in political activity while on duty or in the Federal workplace. Speaking about the ongoing conflict between Israel and Hamas is not political activity unless that speech also shows support for, or opposition to, domestic political parties, partisan political groups, or candidates for partisan political office.

DG: What about flags in the workplace — pride flag, blue lives matter flag, upside down flag?

AG: If if it is not connected to electoral advocacy, it does not violate the Hatch Act.

DG: Is it OK to have political bumper stickers? And, if so, do you need to hide them if entering the agency’s parking lot?

AG: While the Hatch Act prohibits Federal employees from engaging in political activity in a Federal workplace, the Hatch Act regulations specifically state that an employee may place a partisan political bumper sticker on his personal vehicle and park that vehicle in a Federal parking lot or garage.

Even if an employee has bumper stickers for two different candidates on their car, we do not believe it violates the Hatch Act. Employees must be cautioned, though, against displaying other partisan political materials, or even bumper stickers, in such a way that makes the vehicle appear to be a campaign mobile.

DG: Can you follow an agency political appointee on LinkedIn?  And, must you no longer follow that person if they run for office?

AG: Yes, you can follow an agency political appointee on LinkedIn. Should the individual run for office, you can still follow that person. But Federal employees who follow a candidate must be careful not to engage in activity in support of the candidate while on duty or in the Federal workplace.

DG: What is your guidance on quotes by politicians in email signature lines?

AG: We advise that employees may not use work email signature lines to show support for political parties or candidates by displaying their quotes or campaign slogans.

[email protected]

Related training:

Law Enforcement Officer Bites His Wife During an ‘Altercation’

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By Deborah J. Hopkins, September 10, 2024

Quick facts:

  • A law enforcement officer was removed after the agency learned he bit his wife during an off-duty physical altercation at their home.
  • The appellant was not truthful when questioned about the altercation and claimed his wife bit herself.
  • The administrative judge (AJ) found a nexus between the conduct and the efficiency of the service but mitigated the penalty because the agency did not appropriately address several mitigating factors, and the MSPB upheld the AJ.

In my line of work, I never have to make anything up. And once again, the point is proven in a recent MSPB case, Bonojo v. DHS, NY-0752-20-0056-I-3 (Aug. 22, 2024)(NP). Here are the facts, some of which I had to find in the initial decision (ID), which was issued Mar. 31, 2021.

  • A GS-12 Deportation Officer at ICE had a physical altercation with his wife on a day he was not scheduled to work. However, he was wearing his service weapon at the time because he could be called in to work if necessary.
  • The physical struggle occurred after his wife learned he had received a text message from another woman, and she attempted to take his phone from him. The appellant threw his wife on the ground and bit her on the arm; she scratched his chest.
  • The appellant called the police, and both individuals were arrested for assault.
  • The appellant reported the arrest to the agency. He claimed, on multiple occasions, that his wife bit herself in an attempt to make him look like the aggressor.
  • The agency removed the appellant based on two charges: 1) conduct unbecoming a law enforcement officer (one specification, related to biting his wife) and (2) lack of candor (four specifications, related to inaccuracies in reporting his version of the altercation).

On appeal, the AJ affirmed both charges, including 3 of the 4 specifications on the lack of candor charge. She also found a nexus between the conduct and the efficiency of the service because, while charge 1 occurred off duty, “[t]he appellant’s biting his wife raises questions as to his temperament.” Initial Decision at 13. However, the AJ also found the deciding official did not give sufficient weight to certain mitigating factors:

  • The appellant’s wife was not seriously injured and did not need medical attention.
  • The appellant’s performance ratings were outstanding.
  • The appellant had over 10 years of discipline-free Federal service.

The AJ found the removal to be outside the bounds of reasonableness. However, the appellant was now Giglio-impaired. The AJ ordered the removal mitigated to a reassignment to the highest-graded non-LEO position in his commuting area.

If you are thinking, “But Deb, a reassignment on its own isn’t even discipline,” then you’d be absolutely right. If the agency reassigned the appellant to a non-LEO job at the same grade level, then there would not be any discipline in his record!

And that is despite the Board’s strong language on nexus: “Thus, when law enforcement officers engage in off-duty misconduct, it is a ‘serious breach of conduct and . . . [has] a significant effect on [the officer’s] reputation for honesty and integrity, thereby a significant effect upon the efficiency of the service,’” citing Austin v. Department of Justice, 11 M.S.P.R. 255, 259 (1982). NP Decision at 4. Furthermore:

 

As a trained law enforcement officer, it is reasonable to expect that the appellant not resort to such violence, and his failure to do so casts doubt upon his ability to perform his duties, which require him to have good judgment and strong decision-making skills in high stress, difficult situations … [A]s a result of his actions, the appellant was arrested, and his second line supervisor had to retrieve the appellant’s weapon and credentials from the local police station, thus involving agency officials in his off-duty conduct.

Therefore, we find that the appellant’s actions undermine his ability to perform his duties as a law enforcement officer and adversely impacted the mission of the agency, namely, the enforcement of laws. Thus, consistent with previous Board findings, we find that the appellant’s off-duty misconduct is antithetical to the appellant’s role as a law enforcement officer and, therefore, has a significant impact on the efficiency of the service. (internal citations omitted)

Id.

Rather than reinstate the penalty, however, the Board upheld the AJ’s order on reassignment.

Had the agency done a complete Douglas analysis, it’s quite possible the removal would have been upheld, but its failure to give consideration to the mitigating factors allowed the AJ to substitute her own judgment for that of the deciding official. Yikes. [email protected]

Related training:

Take-it-or-leave-it Telework Offer Raises Accommodation Questions

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By Frank Ferreri, September 10, 2024

Quick facts:

  • An EPA economist had allergies that required him to be away from certain irritants.
  • The agency accommodated him until it moved a heavily perfumed coworker near him.
  • The agency’s offer of 100% telework or nothing led a Circuit Court to question the offer and the interactive process.

Last month, we told you a reasonable accommodation doesn’t mean the employee necessarily gets exactly what they want. Well, a case that came out in the meantime shows that the same holds true for the agency side. In Ali v. Regan, No. 22-5124 (D.C. Cir. Aug. 9, 2024), the D.C. Circuit Court of Appeals found the agency’s offer of telework or nothing as an accommodation left questions regarding the reasonableness of the offer and the sufficiency of the interactive process.

The fragranced coworker

An Environmental Protection Agency economist had severe allergies. The agency was aware and provided a workspace that accommodated the employee’s health needs.

Things changed, however, when the EPA placed a worker known for wearing heavy perfume in the cubicle next to the economist. When the economist asked for a private office or conference room to work in, the EPA offered a different cubicle, which the economist also found “very perfumy.”

The EPA requested and received medical information from the economist regarding his allergies. The agency offered the economist a take-it-or-leave-it accommodation of 100% telework, which the employee had not requested.

The economist asked the agency for other options and asked the coworker to stop wearing fragrances. Neither yielded a solution. Thus, he filed a Rehabilitation Act claim after an ALJ and the EEOC ruled in the EPA’s favor.

The District Court granted summary judgment in favor of the EPA as well, concluding the economist failed to act in good faith during the interactive process because he rejected telework without an explanation.

Rehabilitation Act requirements

The economist appealed to the D.C. Circuit Court of Appeals, which focused on the reasonableness of the accommodation offered.

The Rehab Act’s reasonable accommodation standards are the same as those applied under the Americans with Disabilities Act. Under the ADA, “reasonable accommodations” include making existing facilities usable by people with disabilities and may involve job restructuring, modified scheduling, and reassignment. The EEOC has specified that adjustments to the work environment may be necessary to provide a reasonable accommodation.

In its appendix to the ADA regulations, the EEOC advises that employers should:

  1. Analyze the particular job involved and determine its purpose and essential functions.
  2. Consult with the employee to ascertain the precise job-related limitations imposed by the employee’s disability and how those limitations could be overcome with a reasonable accommodation.
  3. In consultation with the employee to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position.
  4. Consider the preference of the employee to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.
More questions

The D.C. Circuit reversed the District Court’s decision, finding it erred in concluding the economist caused a breakdown in the interactive process. According to the D.C. Circuit, it was up to a jury to decide the disputed material facts regarding the reasonableness of the EPA’s proposed final accommodation, which was offered without first meeting with the economist to discuss accommodation options.

The D.C. Circuit noted the economist provided all of the information that the agency requested of him, and that information is what the agency used to formulate its accommodation offer. The D.C. Circuit also found questions regarding whether the economist did, in fact, reject the EPA’s offer.

“The record does not indicate that [the] EPA spoke with [the economist] at all about an appropriate accommodation between the time it determined he qualified for one and its proffer of the 100% telework accommodation,” the D.C. Circuit wrote. “Instead, [the] EPA presented its offer as an apparent fait accompli, without ever discussing with [the economist] the effectiveness or reasonableness of 100% telework.”

The D.C. Circuit also pointed out that the economist tried to re-engage the agency in discussion about alternative accommodations, following up once a week for three weeks on his request for a private working space with no evidence that the EPA responded to any of the follow-ups other than an email stating “you have been offered a reasonable accommodation of 100% telework and have declined the offer.”

Was the offer reasonable?

The D.C. Circuit also found triable issues as to whether the all-or-nothing telework offer was reasonable, given evidence that the economist could “not print things” at home due to allergic reactions he experienced “to emissions from printers” and that he lacked an office space “set up.”

While telework is often a successful option, especially in a post-COVID world, the D.C. Circuit pointed out that assumptions can be risky, and some employees may not be suited for separation from the in-person environment.

“Offering a willing employee a remote-work option is very different from forcing remote work on an unwilling employee as the sole option for accommodating that employee’s disability,” the D.C. Circuit reasoned. “In the latter case, the factual record would have to justify the reasonableness of such forced segregation, such as by showing the absence of an integrative reasonable accommodation.”

The D.C. Circuit sent the decision back to the District Court.

A dissenting judge pointed out that, five years earlier, the economist worked at home temporarily as a reasonable accommodation. That experience, along with a lack of evidence on how working at home would hurt the economist’s career, supported the EPA’s position that telework was a reasonable accommodation.

As the court phrased it, requiring an employee who has successfully worked in the office for years to leave the workplace permanently as the sole means for accommodating a disability – without first discussing it with the employee or exploring integrative alternatives – risks running afoul of the Rehabilitation Act. It is still up to the employee to show the feasibility of some other option. However, just because telework is an excellent accommodation in many cases does not mean it will be reasonable in every case. [email protected]

Related training:

  • March 24-28, 2025: EEOC Law Week

The Good News: Unions Make Sure You Do Your Job Correctly

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By Ann Boehm, September 10, 2024

Quick facts:

  • It’s the managers’ obligation to handle problem employees who negatively impact the agency’s mission.
  • Union representatives are obligated to ensure problem employees are treated fairly.
  • Learn the processes and take the right steps to handle problem employees.

What do managers, counsel, employee relations specialists, labor relations specialists, employees, and union representatives all have in common? All of them know who the toxic employees are. What’s different is how these folks deal with the toxic employees. Or is it really different?

I recently had the amazing opportunity to train union stewards. Throughout my career, I have spent much more time on the management side than on the union side. This was a tremendous chance for me to learn more about the union perspective.

Early in the training, I discovered the union stewards certainly know who the problem employees are. In fact, the problem employees are not necessarily any nicer to the union representatives than they are to managers.

But here’s the big difference between the managers and the union representatives: The managers have an obligation to the public, and part of that obligation is to handle problem employees who negatively impact the mission. The union representatives are obligated to ensure that even the problem employees are treated fairly and have all available opportunities to challenge management’s actions.

I came out of this experience thinking of the union representatives more like criminal defense attorneys. Most people wonder how criminal defense attorneys can represent an admitted murderer, for example. The common response from those attorneys is that everyone is entitled to their rights under the Constitution and criminal laws. If the police or prosecutors do something wrong to violate those rights, or if the prosecutors cannot prove the commission of a crime beyond a reasonable doubt, then that’s on them.

In the employment context, union representatives may know the employee is a problem and deserves discipline or a performance-based action, but they are going to do their level best to make sure management and agency reps do things correctly.

What’s the lesson to be learned here? No one wants problem employees dragging down the agency or co-workers. If the agency wants to take action, it needs to do things correctly. The union representatives are there to keep a check on the process. It’s their job.

So, agencies learn the processes and follow them. (We at FELTG are here to help!) Understand that the union representatives know who the problem employees are, but they have a job to do. Take the right steps to handle the problem employee. Everyone will benefit. And that’s Good News! [email protected]

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ALJ Rules Medical Inability to Perform Removal Was Fitting

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By Dan Gephart, September 10, 2024

Quick facts:

  • A Navy shipfitter was injured on the job. He broke several bones, had internal bleeding, and later developed PTSD.
  • Years later, the agency and employee went through a good faith interactive process to find a reasonable accommodation.
  • A Merit Systems Protection Board administrative law judge upheld the agency’s decision to remove the employee for medical inability to perform.

Some cases we review offer fact patterns that include outlandish, even ridiculous, behavior by an employee. Other cases reveal an agency blatantly failing to follow the basic tenets of the law.

Denny v. Navy, SF-0752-24-0291-I-1 (May 29, 2024)(ID) is neither of the above. This case involves an appellant whose injury made it impossible for him to perform his job and an agency that followed the right steps to address the situation. Unfortunately, it was not a win-win situation in the end. However, Denny allows us an opportunity to review how to handle the reasonable accommodation process and medical inability to perform removals.

It all started because of an improperly installed hatch on a ship. The appellant, a shipfitter on a temporary assignment in Japan, stepped onto the hatch, which collapsed inward. He fell, suffering internal bleeding and several broken and fractured bones. The spotter, a coworker who was with the appellant, had a panic attack and could not help. The appellant was lucky to live through this accident.

The appellant was initially treated in Japan. Upon return to the United States, he was diagnosed with a lumbar contusion, left hip contusion, right index finger avulsion fracture PIP joint, right great toe avulsion fracture based proximal phalanx, right wrist scaphoid fracture status post-ORIF, pulmonary contusion, and splenic subcapsular hematoma. After a psychological evaluation and counseling, the appellant was diagnosed with post-traumatic stress disorder resulting from his work injury, as well as major depressive disorder.

After his injury, the appellant continued to work as a shipfitter. Fast forward a few years: His supervisor was not happy with the appellant’s work and sought to have him removed. The appellant then submitted a request for reasonable accommodation, elaborating that cold weather made his hand pain and back pain worse and that he had psychological trauma.

Four reasonable accommodations were considered but dismissed. The first, moving the appellant away from the waterfront and getting him out of the cold, did not address the other physical limitations or psychological concerns. Second, making the appellant a training instructor, a role he took on while the accommodation process played out, would require a promotion, and the appellant was only capable of teaching 25 percent of the curriculum.

The appellant also requested telework or medical retirement as accommodations.

First off, early retirement is not an accommodation. (Ironically, being removed for medical inability to perform creates a presumption of entitlement to those benefits.) But more importantly, telework is not an option for the shipfitter position, which requires work on large pieces of metal on ships or in the shop. The agency attempted reassignment as an accommodation but couldn’t find a position where the appellant could perform the essential functions.

In order to receive an accommodation, the employee must be a qualified individual with a disability. The term is defined as someone who:

  • Has a disability;
  • Satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires; and
  • Can perform the essential functions of such position with or without reasonable accommodation.

After a thorough process, the agency could not find any reasonable accommodations that allowed the appellant to perform the essential functions of his job. So, the agency removed him based on a single charge of Medical Inability to Perform the Essential Functions of the Position with the following specification:

“Documentary evidence demonstrates that you have permanent physical limitations and psychological limitations of an unknown duration. Because of the nature of your limitations, you are not able to perform the essential functions of your position of record.”

When the MSPB sustains all of an agency’s charges, it will usually defer to the agency’s penalty determination, only reviewing it to determine if the agency considered all of the relevant factors.

Separation for medical inability to perform is an adverse action. However, it is non-disciplinary. So, the agency did not have to apply the Douglas factors. Shoffner v. DoI, 9 MSPR 265 (MSPB 1981).

The administrative law judge ruled:

In the circumstances, the agency’s decision to remove the appellant was reasonable. Based on the existing medical restrictions, the appellant is unable to perform the WG-08 Shipfitter position. The restrictions are described as permanent. The appellant raised questions about the severity of his limitations but did not procure any adjustment from a medical provider. The agency considered the appellant for reassignment, but that process was unsuccessful.

The ALJ addressed other issues in the decision, including the appellant’s claims of whistleblowing and EEO retaliation, and reminded the appellant that removal for physical inability to perform the essential functions of a position is prima facie entitlement to disability benefits, and directed him to the Office for Personnel Management. [email protected]

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And Now a Word With … Mika Cross

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By Dan Gephart, September 3, 2024

During the pandemic we learned that, yes, most employees can be trusted to perform their jobs when not physically present in the office. A Government Accountability Office report [PDF] stated: “Telework generally appeared to positively affect productivity.”

Yet, many agencies, along with state and local governments, are pushing employees to return to the office. Meanwhile, many Federal supervisors have shared with us the challenges of managing a hybrid team.

Mika Cross, workplace transformation strategist at Strategy@Work, has been touting the benefits of remote work since long before the pandemic. And her passion has not wavered.

“Federal agencies have a unique opportunity to shape a more inclusive, flexible, and productive workplace,” she said. “One key area to focus on is embracing hybrid work models. By blending remote and in-office work, agencies can cater to diverse employee needs, enhancing work-life balance and overall job satisfaction while boosting productivity and better ways of working together.”

Adopting a hybrid model alone is not enough to transform a workplace. “Agencies should invest in initiatives that support employee well-being, such as mental health resources, flexible schedules, and wellness programs. Recognizing and addressing the unique challenges faced by remote workers can lead to a more engaged and productive workforce.”

We caught up with Cross for a brief conversation as she put the final touches on her Sept. 10 FELTG Virtual Training event Designing Inclusive, Healthy and Connected Workplaces Across a Distance.

DG: What is currently the biggest threat to employee wellbeing in the Federal workplace?

MC: In today’s digital workspace, effective collaboration is more crucial than ever, yet many organizations struggle with it. The shift to remote work has highlighted gaps in collaborative skills, making it essential to foster a culture of teamwork and communication, even virtually.

Meeting culture and poorly designed meetings can drain time and energy without yielding results, so streamlining meeting structures and focusing on clear outcomes is key to transforming productivity and helping to safeguard employee wellbeing.

High stress levels, increased workload and low morale are alarming. Data from the McChrystal Group show that 65 percent of government employees feel burnt out, compared to 44 percent in the private sector. Addressing these issues is vital for employee well-being as these issues affect physical well-being, work performance, productivity and attrition. An unsupportive environment can hinder productivity and inclusivity, making it crucial to create a safe and respectful workplace.

DG: You talk a lot about connectivity. How would you define it?

MC: Connectivity refers to the degree to which individuals, teams, and organizations are cohesively and positively linked, both internally and externally. It includes a variety of factors, such as effective and transparent communication, collaboration, and information flow. In the context of what I like to call “instrumental assistance” or … “helping each other out,” connectivity also involves cultivating a culture that enhances the ability to share knowledge, resources, and support effectively.

DG: How do you measure it?

MC: Measuring connectivity can be done through various methods. Network analysis examines relationships within a group or organization, using metrics like centrality, density, and bridging. Social network surveys assess the strength and frequency of interactions among individuals, asking questions like “How often do you seek help from colleagues?” or “Who do you turn to for advice or help when you need it?”

Employee surveys, listening sessions, pulse checks, and feedback mechanisms provide valuable insights into connectivity by capturing employees’ experiences and perceptions.

Tracking the effective use of collaboration tools, such as shared documents and chat platforms, also provides insights, with high usage indicating active collaboration. Connectivity often correlates with organizational performance, with metrics like project completion time, innovation, and employee satisfaction indirectly reflecting connectivity. Connection also enhances productivity, creativity, innovation, and overall well-being in the workplace.

DG: Some supervisors will tell you that it’s hard to create that connectivity when so many are working remotely. Can you provide an example of how to ensure connectivity within a hybrid team?

MC: Maintaining connectivity in a hybrid team can be challenging, but there are effective strategies to foster collaboration and engagement. One approach is to designate specific time slots for “virtual office hours.” During these hours, team members can connect with supervisors or colleagues for informal discussions, questions, or updates. Encouraging remote employees to participate actively in these sessions provides an opportunity for personalized interactions and builds stronger connections. Supervisors can use this time to address individual concerns, provide guidance, and offer recognition.

Another strategy is to invite staff to contribute questions, topics, or ideas related to the agenda before, during and after team meetings. Using collaboration tools or email to collect input ensures everyone has a voice. During the meeting, acknowledging those who contributed and discussing their ideas reinforces engagement and encourages ongoing participation. Keeping the door open for additional contributions beyond the meeting and encouraging continuous feedback from all team members is also crucial.

Incorporating optional team-building activities and fun sessions can enhance connectivity. Trivia sessions based on the organization’s mission or history, lunch and learns, virtual mentoring sessions, and team “watch parties” or learning events can all foster a sense of community and engagement.

For both in-person and virtual connection time, consider organizing hybrid events where some team members gather in person while others join virtually. Examples include hybrid team-building exercises, where in-person participants and remote colleagues collaborate on challenges or games. Hosting regular “coffee chats” or “mentoring sessions” where team members can join from anywhere helps ensure no one feels left out. Additionally, offering virtual and in-person events and engagement sessions, multiple times on different dates and time slots, allows everyone to participate in professional development opportunities regardless of where and when they work.

Proactive communication and intentional efforts to involve remote team members are essential for maintaining connectivity in a hybrid work environment. By providing various options for connection and ensuring inclusivity, organizations can create a cohesive and engaged team.

DG: What are some of the equity issues you’ve seen arise as the workplace went remote?

MC: Increased remote and hybrid work has brought several equity issues to light, particularly in the Federal government. One major concern is proximity bias, where employees who are physically closer to decision-makers tend to receive more attention, opportunities, and recognition. This can lead to an unequal distribution of resources and career advancement.

Another issue is recency bias, where supervisors may focus on recent performance or interactions, overlooking long-term contributions. This can affect performance evaluations, promotions, and rewards.

DG: Are there solutions for addressing those equity issues?

MC: It’s essential to establish transparent metrics for performance evaluation. Decisions should be based on objective data rather than subjective impressions, with regular reviews to ensure fairness. Encouraging structured feedback sessions between supervisors and remote employees can help discuss accomplishments, growth areas, and development opportunities, while addressing any biases that may arise.

Rotating leadership roles or project ownership among team members can ensure diverse perspectives and prevent the concentration of influence. During virtual meetings, it’s important to actively involve remote employees, using video conferencing to create a sense of presence and encouraging participation from all team members.

Recognizing that remote employees may have different time zones or family responsibilities, offering flexible schedules can accommodate diverse needs. Providing training that focuses on building inclusive cultures is also crucial and should be mandatory for all supervisors and team members. Promoting equity in remote work requires intentional efforts, ongoing assessment, and a commitment to fairness!

DG: Which groups would be hurt the most if the Federal workplace returned to pre-pandemic levels of remote work?

MC: The short answer? Most of us might if we moved back to a more inflexible work model.

If the Federal workplace returned to pre-pandemic levels of remote work, several groups would be significantly impacted. Younger generations, such as Millennials and Gen Z, who have become accustomed to the flexibility of hybrid and remote work, might struggle with work-life balance and overall well-being. Employees with disabilities would face reduced accessibility and increased barriers, as remote work offers them the necessary flexibility. Caregivers managing responsibilities for children or elderly parents would find it challenging to balance their roles without the flexibility remote work provides. Additionally, diverse communities could see a setback in diversity and inclusion efforts, as remote work has allowed for a broader talent pool beyond geographic limitations by tapping talent outside of headquarters and metropolitan office locations where there is generally a higher cost of living (which could also be a barrier to employment.)

From a generational perspective, Baby Boomers might prefer in-person interactions but still value flexibility. Gen X employees favor hybrid models that offer autonomy and adaptability. Millennials and Gen Z prioritize flexibility, purpose-driven work, and work-life integration, making them more resistant to a full return to the office. A focus on age-inclusive teams and training is key to prevent creating a divide or ineffective team performance.

Federal workplace trends show a mixed approach: While some agencies have reduced full-time remote work, emphasizing in-office presence, other Federal agencies continue to maintain hybrid models, recognizing the benefits of remote work. Recruitment and retention, especially in sectors like IT and healthcare, remain challenging, and remote work can help alleviate burnout and turnover.

In summary, a rigid return to pre-pandemic office norms could disproportionately affect younger generations, caregivers, and diverse communities who already experienced different challenges to employment and career advancement. Balancing flexibility, productivity, and well-being is crucial for the future of the Federal workplace.

DG: We keep hearing that remote work is a great recruitment tool. Is there any data to back that up?

MC: During the height of the pandemic when remote jobs were on the rise in the Federal government, interest in Federal positions as measured by the number of visits to USAjobs.gov, increased by nearly 3 percent. The Office of Personnel Management also cited increases in the diversity of applicants and an increase of applicants in certain remote positions as high as 25 percent more than those positions that do not offer remote or telework options.

Exploring the data on remote work as a recruitment tool, particularly for the Federal workforce, reveals some compelling trends. Reducing office space can save the taxpayers and agencies millions of dollars that can be invested in modernizing technology to deliver services to the citizens and invest in career development, skills enhancement, and modernization of the workforce. The data supports remote work as a powerful recruitment tool, offering flexibility, access to a broader talent pool, and cost-effective solutions for the Federal workforce. 

[email protected]

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