Agency Blatantly Fails to Accommodate Breastfeeding Employee

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By Deborah J. Hopkins, August 19, 2024

Quick facts:

  • The EEOC ruled for the employee, after the agency failed to provide a legitimate, nondiscriminatory reason for denying the complainant access to a clean lactation facility.
  • The employee was told to go home so she could express milk, and was subsequently charged LWOP.
  • Since this complaint was filed, new laws have only strengthened protections for pregnant and lactating employees.

People around the country cheered at the end of 2022 when the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) went into effect, and they cheered last summer when the Pregnant Workers Fairness Act (PWFA) went into effect. These laws require employers – including Federal agencies – to, among other things:

  • Provide adequate break times and a private (non-bathroom) space for employees to express and store breastmilk during the workday, and
  • Accommodate the limitations of employees related to pregnancy, childbirth, and other related medical conditions – unless doing so would cause an undue hardship on the employer’s operations.

While these laws did not become effective until recently, certain workplace protections for pregnant and lactating employees have long existed in the Federal government: the Pregnancy Discrimination Act, which went into effect in 1973, as well as Title VII of the Civil Rights Act of 1964.

A fairly recent EEOC case explored an allegation of pregnancy-related discrimination against a USPS employee, before the PUMP Act and PWFA went into effect: Krysten D. v. USPS, EEOC App. No. 2021005238 (Feb. 8, 2023).

Here’s what happened: After the birth of the complainant’s first child, management designated her an office for use as a lactation room. For privacy, management covered the window with paper and provided a small refrigerator where the complainant could store the milk during the workday. After the birth of her second child, the complainant initially used the same office to express breastmilk approximately every two hours.

So far, so good.

And then things changed. At one point during a shift, the complainant went to the lactation room and found it was locked. She requested management unlock the door, but management told her the keys were not available. After nearly three hours, the complainant was told to go home because there was nowhere else for her to express milk, and her pain had “become unbearable.” Id at 2. Because of the distance from her workplace to home (over 30 minutes) and the short amount of time remaining in her shift, the complainant stayed home after she expressed the milk. Her manager then charged her 4 hours and 9 minutes of LWOP.

A few other relevant details:

  • A year prior to this event, the complainant informed the agency of her concerns about being able to access the lactation room.
  • If the room was left unlocked, coworkers used the room for non-lactation related activities (breaks, lunch, etc.) and left the room dirty, which forced the complainant to sanitize the room every time she needed to use it.
  • On one occasion, the complainant went to the lactation room to express milk and found three individuals inside attending a training on a TV, which was plugged into the only outlet.
  • If the room was locked when not in use, the key was possessed by only one person, who worked a different shift than the complainant.
  • The complainant requested a copy of the key so she could access the room during her shift. Management refused because it was a master key. The complainant then offered to pay for a new lock on the door and management refused.

As a result of all these events, the complainant filed a sex discrimination claim (pregnancy-related condition), alleging she was not provided with a proper place for lactation.

The law on this is clear: A complainant alleging that the denial of an accommodation for a pregnancy-related condition constituted disparate treatment sex discrimination may state a prima facie case by showing that:

  1. She belongs to the protected class;
  2. She sought accommodation;
  3. The agency did not accommodate her; and
  4. That the agency did accommodate others “similar in their ability or inability to work.”

Young v. UPS, 575 U.S. 206 (2015), req. for recon. denied, EEOC Request No. 2019002792 (Jun. 25, 2019).

The agency may justify its failure to accommodate if it can show a legitimate, nondiscriminatory reason for denying accommodation. Id. at 229. According to the McDonnell-Douglas framework, the complainant must demonstrate pretext in order to prevail in her claim.

In reviewing the case, the EEOC found the agency could not provide a legitimate, nondiscriminatory reason for denying the complainant access to a clean lactation facility. Therefore, the complainant proved her claim of discrimination. As is often the case, the decision was issued long after the harm occurred.

Fortunately, cases like these don’t come up too often. However, agencies should still take note, especially since pregnant and lactating employees now have even more protections than they did just a couple of years ago. [email protected]

Related training:

  •  Everything You Need to Know About the Pregnant Workers Fairness Act (recorded Sept. 5, 2024)
  •  EEOC Law Week

A Successful Performance-Based Removal Under Chapter 75

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By Deborah J. Hopkins, August 12, 2024

Quick facts:  

  • Most executive branch agencies have the flexibility to remove employees who have performance failures under either Chapter 43 or Chapter 75 of the Civil Service Reform Act (CSRA).
  • If an agency has a policy that requires something beyond what the law requires, the agency must follow its own policy, or its action will be set aside.
  • If an agency meets the requirements of a traditional Performance Improvement Plan (PIP) without identifying the process as such, it can still show that the legal requirements for a performance-based action have been met.

We’ve long taught in our classes that performance-based removals under Chapter 43 were intended to be fast and easy under the CSRA. After all, the burden of proof is only substantial evidence, a “reasonable” opportunity to demonstrate acceptable performance should not exceed 30 days, and supervisors have broad discretion in assessing employees on subjective performance standards.

Over the years, though, some agencies have made it more difficult through self-imposed hurdles, such as:

  • Requiring a pre-PIP before implementing a PIP.
  • Negotiating a long PIP (90 or 120 days) into a union contract.
  • HR advisers telling supervisors (incorrectly) that they need much more evidence to implement a PIP than is actually legally required.

One of the approaches we at FELTG occasionally suggest is to handle a performance issue under the misconduct procedures in Chapter 75. This is a perfectly legal approach, and, in certain circumstances, it makes more sense than using the Chapter 43 procedures. See Lovshin v. Navy, 767 F.2d 826, 843 (Fed. Cir. 1985) (en banc).

A recent MSPB case involved an agency that removed an employee in exactly this manner. Gist v. DOD, DC-0752-18-0614-I-1 (Jun. 12, 2024)(NP). Here are some relevant facts:

  • The appellant, a GS-15 senior accountant, received his annual performance appraisal with a summary rating of “Not Met” because his performance was unacceptable on two critical elements: “Teamwork” and “Support of Mission.”
  • The agency proposed his removal under 5 U.S.C. Chapter 75 based on a charge of “Duty Performance at the ‘Not Met’ Level,” with a specification that said “the appellant ‘failed to create an overarching financial reconciliation [Standard Operating Procedure (SOP)] and to monitor reconciliation activity on a regular basis’ as he had been directed to do … and he ‘failed to effectively work well with others to get the job done.’” Id. at 2.
  • He appealed his removal, claiming, among other things, that the assignment of the SOP was improper because he lacked the necessary background to complete it, that the assignment was vague and improper, and that he was given inconsistent instructions on how to actually complete the SOP.
  • The AJ and the Board disagreed with the appellant and found the agency’s assignment was proper, that the appellant was unnecessarily causing tensions within the team, and that the agency proved its charge.

The appellant also argued that because the agency claimed he had performance issues, he should have been given a PIP, and that “if the agency had followed the prescribed [PIP] procedures, he would have improved his performance, and the entire removal action would have been avoided.” Id. at 7.

Which brings up another interesting point. An agency is not required to give a PIP in order to remove an employee for unacceptable performance under Chapter 75 – unless it has a policy that says it must.

So, in effect the Board agreed with the appellant about the entitlement to a PIP period, relying on the following:

DOD Instruction No. 1400.25, § 3.9.b explicitly acknowledges that a performance-based action can be taken under either authority (Chapter 43 or 75), and it provides without differentiation that, if an employee’s performance declines to an unacceptable level, the supervisor must inform him of the deficiency and provide him assistance to help him improve his performance during an opportunity period to demonstrate acceptable performance. Although this is not normally required in a Chapter 75 performance-based action … the agency here has imposed this additional requirement on itself and is, therefore, bound to follow it… We find that the agency followed its requirements as stated in DOD Instruction No. 1400.25, § 3.9.b for taking a Chapter 75 performance-based action. (bold added, internal citations omitted)Id. at 8.

However, the Board also found that while the agency did not put the employee on an official PIP, it met its own policy requirement, because:

  • The supervisor informed the appellant of his performance deficiencies during his midyear performance evaluation, a full 4 months before the agency proposed the appellant’s removal;
  • The agency provided the appellant with ample time to bring his performance up to standards; and
  • The appellant’s supervisor met with him every other week about the SOP assignment, which satisfied the obligation to assist the appellant in improving his performance.

Because the agency afforded the appellant all the procedural protections that the DOD rule required for performance-based actions under chapter 75, the Board upheld the removal.

I discussed this case with FELTG founder Bill Wiley. I asked if he had any additional thoughts, and he shared the following:

Although the agency was successful in defending its removal of an unacceptably performing employee by using 752 procedures instead of 432 procedures, it gave itself two significant extra burdens. First, it had to defend the penalty selection of removal under Douglas. That means that it had to produce proof of the agency’s proper consideration of the Douglas Factors as well as proof of the facts alleged in the Douglas Factor analysis. Second, it had to do all this proving at the preponderant level (51%+ of the evidence) rather than at the substantial level (40%+) that is used for 432 removals. Yes, certain types of unacceptable performance situations are better addressed through use of the 752 procedures, e.g., a single act of highly harmful unacceptable performance. However, as a general rule, here at FELTG, we still recommend 432 procedures as a first and primary consideration when faced with a non-performer.

[email protected]

Related training:

The Good News: Reassignments Can Work for Everyone!

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By Ann Modlin Boehm, August 12, 2024

Quick facts:

  • Most people end up in a job they don’t like at some point in their careers.
  • Many of those people are afraid of change and typically choose to just stick it out in the unhappy job situation. This can sometimes lead to performance and attitude problems.
  • Reassigning an employee doesn’t have to mean dumping a problem on another manager.

Have you ever been in a job you do not like? I hope the answer is not, “Yes, my current one.” But it could be. If you have ever been in a bad job, you know it is not a fun situation.

Being in the wrong job makes for very long days. The work can be daunting and exhausting. Very often, your performance suffers.

During my career, I had a few jobs I really did not like. Sometimes, I did not like the duties of the job, and sometimes, I did not like my supervisor. (I wonder if any of my former supervisors are reading this and wondering if they fell into that last category.)

I am not afraid of change. When I was unhappy in a job, I started looking for a new one. I searched dutifully on USAJOBS for new opportunities. And sometimes, I searched for a detail or reassignment opportunity within my agency.

Those efforts worked for me, but many people are afraid of change. People who do not like change typically choose to stick it out in their unhappy job situation rather than look for another opportunity.

Supervisors know when an employee is performing poorly or when their bad attitude is creating toxicity in the workplace. What supervisors often miss in those situations is that the root cause of the performance and attitude problems is that the employee just does not like the job.

Too often, supervisors tend to believe this kind of employee will not succeed in any job. That belief may keep them from helping the employee find a reassignment within the agency. There is a fear that they will be dumping a problem on someone else, but that should not be a foregone conclusion.

During my Federal career, I observed several “problem” employees in one environment end up thriving in another environment. Very often, a supervisor with a different personality made all the difference. Or the employee found a job better suited to their skillset.

I encourage supervisors and advisors to think about a reassignment as an option for an unhappy employee. As a first step, it is a good idea to talk to the employee and find out if they like their job, and if not, what other agency jobs might interest them. Then, look around and ask around and see if there is a job opening within the agency.

To avoid dumping a problem, explore a detail. Make it clear to the employee and the receiving supervisor that if the detail is not a success, the employee will return to the original position. If the employee thrives, the reassignment can be permanent. If they fail, you now have an indication that this employee may just be a poor employee. And yes, then the original supervisor will have to deal with that situation.

If a reassignment works, you can go from an unhappy supervisor and unhappy employee to two happy supervisors and happy employee. And that’s Good News! [email protected]

Related Training:

 

Accommodations: Reasonable Doesn’t Always Mean Preferred

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By Frank Ferreri, August 12, 2024

Quick facts:

  • An SEC attorney had dyslexia and ADHD, which affected her concentration and ability to read and write.
  • The attorney was provided with accommodations, but the agency denied the mode of training she preferred for some of those accommodations.
  • The court found the agency engaged in a good-faith interactive process for Rehabilitation Act

Those who have experience with the interactive process know an employee with a disability often is the best source for finding accommodations that will work best to ensure the employee can perform the essential functions of her job.

However, as Uygur v. Gensler, No. 24-975 (E.D. Pa. July 19, 2024) recently demonstrated, an agency doesn’t have to fulfill all of the employee’s requests to meet its Rehabilitation Act duties.

What happened in Uygur?

A longtime attorney with the U.S. Securities and Exchange Commission was diagnosed with dyslexia and attention deficit hyperactivity disorder, which impacted her concentration and ability to read and write. The SEC provided her with three computer training programs. The agency also assigned the human resources disability program officer to help the attorney install the programs and learn how to use them.

Within a couple of months, the attorney requested live, in-person training rather than the computer-based options. The attorney said she struggled with the SEC’s virtual training platform.

The agency had previously used a Philadelphia office to conduct in-person training on computer programs. The SEC denied the request because all Philadelphia-based employees, like the attorney, were participating in the training virtually.

The attorney submitted a letter from her physician explaining why in-person training was needed to address the attorney’s disabilities. The agency approved the attorney to attend an in-person conference in Washington, DC, which was the subject of a separate request. However, according to the attorney, the agency would not apply the letter to her request for in-person computer program training.

The attorney filed a complaint with the Equal Employment Opportunity Commission for disability discrimination and eventually was granted the right to file a civil action, which she did in the form of a Rehabilitation Act suit alleging a failure to accommodate.

To establish a failure to accommodate under the Rehabilitation Act, an employee must show:

  1. She had a disability, and the agency knew it;
  2. She requested an accommodation or assistance;
  3. The agency did not make a good-faith effort to assist; and
  4. She could have been reasonably accommodated.

In this case, only the third factor was at issue. That factor turned on whether the agency engaged in the interactive process. The court cited Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999) to explain that the interactive process under the Rehabilitation Act “does not dictate that any particular concession must be made” by an agency. Instead, agencies are required to make a good-faith effort to seek accommodations.

The court found SEC made the requisite good-faith effort to follow Rehabilitation Act requirements by:

  1. Allowing the attorney to attend the DC conference in person;
  2. Providing the attorney with three assistive computer programs; and
  3. Facilitating training on the computer programs, “albeit virtually as opposed to in person.”

The court faulted the attorney for not presenting enough evidence of her failure to accommodate the claim.

“The complaint provides no detail on whether, or how, [the attorney] was left unable to enjoy the equal benefits and privileges of employment by receiving virtual rather than in-person training on the three assistive computer programs provided to her as an accommodation,” the court explained. “Nor does the complaint allege … how [the attorney’s] ability to work, or her status at the SEC, were negatively affected by a lack of in-person training.” Id. at 7-8.

In the court’s view, the attorney was “provided every accommodation she requested except for her preferred method of training on the assistive programs.” Id. At 9.

As a result, the court dismissed the employee’s Rehabilitation Act claim.

The Lesson

A good-faith interactive process is one that rests on the agency and employee working together toward the shared goal of creating the work environment under which the employee will be able to perform the essential functions of the job.  The Uygur court was satisfied with the agency’s efforts toward that goal because the agency delivered the “what” of the accommodations the attorney requested with only a slight deviation from the “how” of them.

It makes sense that an employee with attention-deficit challenges might do better in an in-person setting, but the Rehabilitation Act doesn’t require optimal accommodations, only reasonable ones. Although the court didn’t highlight it, it was probably also a plus that the agency didn’t rule out in-person training as categorically off-limits. Instead, it provided the employee with in-person options when appropriate and offered her the training needed to use the computer programs she requested. [email protected]

Related training:

 

It’s Time to Get HIP(AA) to the Hatch Act

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By Dan Gephart, August 12, 2024

Quick facts:

  • A Federal contractor with no authorization to do so traveled to a conference in Russia to offer the host nation a “peace mission” to Mars.
  • A Federal employee who ran for Senate said he didn’t violate the Hatch Act because he was “unaware” of it.
  • Special Counsel Hampton Dellinger announced two important updates to OSC enforcement of the Hatch Act.

Remember a few years ago when everybody seemed to be an expert on the Health Insurance Portability and Accountability Act? HIPAA (not HIPPA as those self-anointed authorities often wrote) is the Federal law that protects sensitive patient health information from being disclosed by medical providers without the patient’s knowledge or consent. Too many people seemed to be unaware of the extent of the law.

The most telling example was when a congresswoman was asked at a press conference in 2021 whether she received the COVID-19 vaccine. She replied that the reporter’s question was a “violation” of her HIPAA rights. Now more people know: Not only does HIPAA not prevent reporters from asking elected officials about their vaccination status; it also doesn’t prohibit workplaces from asking the same question.

I sometimes think of the Hatch Act as the HIPAA of election seasons. For a law that impacts so many Federal employees, a lot still fail to grasp its aim or restrictions.

Take for example, the contractor who received permission to virtually attend the Global Space Exploration Conference in Russia in 2021. Singh-Derewa v. NASA, DA-1221-23-0239-W-1 (May 21, 2024)(ID). The contractor attended in person and identified himself as a NASA employee. (Note: To reiterate, he was a contractor — not an employee of NASA, although he once was employed by NASA, nearly 20 years earlier.)

It turns out traveling without proper clearance is a serious violation of Department of State travel requirements. Following a review of the incident, the contractor was suspended, and later terminated. He was also rendered ineligible for rehire.

After attempting to work with another contractor in the same space center, he filed a complaint with the Office of Special Counsel, which included a Hatch Act component. If you’re scratching your head trying to figure out where the Hatch Act would come in, you’re not alone. Here are the details from the MSPB administrative judge’s decision.

[T]he appellant alleged NASA Administrator William Nelson violated the Act when he discouraged the appellant’s attendance at the 2021 GLEX Conference at which the appellant had planned to present a “peace mission” to Mars with Russia to prevent a “democrat war” with that country. Id. at 15, 21-24. The appellant further alleged Nelson had “collaborated with the Biden administration to prevent and discourage participation in ‘political activity’ that may prevent conflict and avert a potential nuclear war.”

As the OSC explained, and the AJ concurred, “even if the appellant’s allegations are true, they did not give rise to a Hatch Act violation because the alleged activity was not directed at the electoral success or failure of a political party.” Id. at 4.

Then there is the VA physician who ran for the Senate. OSC filed a Hatch Act complaint against the physician. His reply? “[B]ecause he was unaware that the Hatch Act prohibited his candidacy, he did not knowingly or willfully violate” it. Special Counsel v. Salekin, CB-1216-18-0004-T-1 (MSPB May 24, 2024).

The VA provided Hatch Act information in new employee orientation, maintained a Hatch Act FAQ page on its website, and sent Hatch Act emails to all employees in 2012 and 2014 – the year the physician tried to run for office. The physician did not open the 2012 email, asserting, “if I thought it was important to read, I would read [it].”

Ignorance, it seems, is no defense against a Hatch Act violation. It cost this want-to-be Senator a $1,000 fine and disbarment from Federal service for five years.

As we head into the election homestretch, it’s not the time to overlook the Hatch Act. You may not take it seriously, but OSC will.

In a recent op-ed piece for Politico, Special Counsel Hampton Dellinger put White House officials on notice that it was closing the “escape hatch.”  “[P]rior OSC statements that White House officials cannot face Hatch Act enforcement in the same way other federal civilian employees do are no longer in effect,” Dellinger wrote.

He also noted two important updates to OSC enforcement.

First, we will no longer automatically rule out bringing actions against former government employees. As the MSPB has advised: an “employee’s post-violation resignation does not eliminate the case or controversy between the employee and the Special Counsel concerning whether the employee violated the Hatch Act and, if so, what penalty is warranted.”

Second, the wearing or displaying of items in the workplace related to current political figures should be considered contrary to the Hatch Act regardless of whether it is before or after Election Day. Among the reasons for a blanket prohibition on such items while federal workers are on duty or in their office is the clear connection between political candidates and political parties. OSC has long advised that political party swag (T-shirts, hats, mugs) is banned year-round. It is logical and workable to apply the same rule to individual political figure paraphernalia, particularly items referencing presidential candidates who are, understandably, well-defined in the public’s mind as aligned with specific political parties.

Meanwhile, lawmakers are getting serious about the Hatch Act, too. The list of positions “further restricted” from partisan activity would grow under a new bill to include agency offices of inspectors general. The IGs would join the CIA, NSA, MSPB, OSC itself and more than a dozen other agencies that are held to more stringent standards than most Federal employees. [email protected]

Related training:

And Now a Word With … MSPB Chair Cathy Harris

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By Dan Gephart, July 23, 2024

Twenty-two percent.

That’s approximately what is left of the nearly 3,800 case inventory that the Merit Systems Protection Board inherited when its quorum was restored in March 2022. MSPB Chair Cathy Harris’s swearing-in ceremony three months later gave the Board full occupancy, and the race to tackle those cases began in full.

Harris knew she had a monumental task before her, but she wasn’t worried about the actual work.

“I litigated before the MPSB and the EEOC for about two decades before I came into the job. And I thought I knew everything about MSPB cases. Oh, this is going to be easy, so simple because I know these cases.”

It wasn’t.

“There were all these cases I had no idea about which I never experienced dealing with as a litigator – restoration cases, for example. This is not something my firm focused on. And then the fact scenarios of these cases are always surprising. Just when you think you’ve seen it all, something else comes up. I’m not just talking about employee misconduct. I’m talking about how management deals with situations. The number of management errors and strange areas of misconduct that people get themselves into are just truly astonishing.”

We caught up with Harris two weeks after Henry Kerner, the former Special Counsel, was sworn in to bring the board back to full strength. [Editor’s note: We interviewed Vice Chairman Raymond Limon last month and an interview with Kerner is forthcoming.]

DG: Based on the cases you’ve reviewed, what’s the mistake made most often when it comes to discipline?

CH: One of the biggest errors I see is management choosing the wrong charge to try to encapsulate the employee’s misconduct. It shouldn’t be that difficult to choose the correct charge. Sometimes, management overreaches beyond what the employee did, or just mischaracterizes what the employee did and chooses a charge that’s just not appropriate.

To avoid these errors, managers should work carefully with [human resources] staff and attorneys to try to make sure the charge fits the misconduct.

The other thing I’d recommend is to try to resolve cases before they get to the Board. I see a lot of situations that could’ve been resolved through better communication, better performance management, better discipline management, better warnings to the employee instead of letting things get to a head.

I’m a big fan of mediation at the Board. I think if agencies were spending a little more time and resources on mediation internally, a lot of these problems would go away, and they’d have better outcomes with their workforce.

DG: In our interview two years ago, you said the Board was trying to identify cases that might be appropriate for settlement. How did those efforts go? And what did you learn from them?

CH: Our efforts, I think, were very instructive. We conducted a six-month pilot program from October 2022 through March 2023, called RAMP – the Rapid Assessment Mediation Program, where mediators worked full time attempting to settle appeals at the PFR level.

They settled quite a few. But when the pilot ended, we determined that our limited resources would be best used in issuing decisions in our inventory.

We continue to have a mediation process through our [Mediation Appeals Program or MAP], a well-established program in which administrative judges and other experienced, trained mediators on staff at the Board mediate cases. But the numbers are not that high in settlement at the PFR level. At the PFR stage, we find parties tend to prefer decisions. We’ll keep working on that. I do feel parties should be interested in settlement, even at the appellate level.

DG: Are there certain types of cases that lend themselves more to settlement?

CH: The cases in which there had been a change of law since the initiation of the appeal to the time the case was in the RAMP program. For example, the change in law from the Federal Circuit on performance, Chapter 43 cases. The agencies had to prove another element in order to prove their case. Because that wasn’t done across the board, I think those cases were more ripe for settlement.

Also, there was an evolution of law on the [Department of Veterans Affairs] 714 cases. And those also, I think, were more ripe for settlement at the appellate stage.

At the PFR stage, the parties are pretty set in their interpretation of the facts. The laws that evolved, changed, or crystallized, have allowed, maybe, the parties to get into settlement.

DG: Speaking of Chapter 43 performance actions, we’ve seen several remands because of the need for the pre-PIP Santos justification. Can you explain exactly what type of evidence and format the Board is looking for in Santos documentation?

CH: I can’t really speak to that because it’s different in each case. We look at each case very specifically. Agencies do things differently. Their performance management systems are different. There’s no one right way. Employees’ performance expectations are factually specific.

What I can say without giving an advisory opinion here is that the evidence and the format of the performance expectations need to be sufficient to meet the legal requirements of establishing whether an employee successfully performed under their performance plan. But that’s going to look different in each case.

DG: Early on, the Board seemed to be prioritizing whistleblower cases. As you continue to work through the case inventory and new cases, is there a new priority?

CH: Whistleblower cases make up about 25 percent of our docket. It’s a big percentage and we of course take our mission very seriously to protect whistleblowers from retaliation. We’re evaluating everything very carefully.

When I came on the Board, I said that I wanted to prioritize whistleblower cases. I wanted to prioritize cases where the person is most likely to get back pay. I wanted to prioritize cases that involve disability retirement, and pretty soon I’m listing almost every kind of case the Board has. Because they’re all important, right?

We do prioritize certain cases, but at this point it’s about dealing with the oldest cases and the newest cases at the same time.

DG: Have you seen any trends in new PFRs that are being filed?

CH: You know, MSPB cases reflect what’s going on in society as whole. We’re still working through the inherited inventory. I’m looking at cases from 2020, 2021. That’s mostly what’s on my docket now. We’ve been seeing cases involving COVID leave issues, COVID vaccine issues, and the like, issues involving telework, that expanded during the pandemic.

Our approach, which I think has been very successful, is we started with the oldest cases. We were also simultaneously doing the newest cases because we didn’t want to have a permanent case update review team updating the cases due to the passage of time, evolutions in law.

I’m doing current cases and older cases. We’re seeing different trends based on what’s going on in the world.

DG: Those topics – the COVID leave cases, the vaccine cases – bring me right back to 2021.

CH: Yes, it’s a little traumatic to look back, you know.

DG: Where are you at with the inherited inventory? 

CH: We have 22 percent left. I think we’ve done an incredible job. And, you know, agencies have backlogs for a lot of different reasons. I think the way we handled it can be helpful to other agencies and to ours in the future. What we did is very consistent with all the advice we’ve seen on how to handle a backlog of cases.

One, don’t hide your head in the sand, try to have a plan. Do prepare and don’t be afraid to put resources on tackling the backlog and shift things around, add resources, repurpose duties so you can make sure you’re addressing the problem.

The other thing we do really well at the Board is we have a good system for drafting opinions. We have an extraordinary team of lawyers in our Office of Appeals Counsel. They draft decisions for our review. They did an incredible job of queueing everything up for the Board Members.

We also have a very good Clerk’s office, who have done a good job figuring out where the cases are and how to get them to us.

The other thing we did very well–now, I wasn’t there so I don’t give myself credit for this, I credit the career employees, who during the lack of quorum, took the opportunity to transition to an electronically-based system from a more paper-based-system. This builds efficiencies and makes things a lot better, a lot quicker. This, I think, is the first Board to be doing everything electronically. When I first came, they were still carting some paper back and forth to the Board offices. I’ve looked at a paper file maybe five times in the past two years. I love paper, but it’s not efficient.

All of those things have been really helpful. I think staying mission-oriented helps, too. We really care about the fact that parties have been waiting for years for the adjudication of their matters. And that’s not fair. We feel terribly for them. It puts a lot of lives in limbo. So, I think we’re really motivated.

I think all of those things together is a really good recipe for eradicating an inherited inventory.

DG: What you’ve done will be a case study for years to come, I think.

CH: I hope our pain helps other people. I hope it’s helpful to somebody. I’m really proud of the work we’ve done. I think we’re working really hard, and it looks to me like we’re going to be able to wipe out that inherited inventory around the end of this calendar year.

Listen, there may be some cases that hold over because they’re hard or long or strange or thorny, but, for the most part, we should be in really good shape.

DG: According to last year’s FEVS, morale has fallen at the MSPB. What is the agency doing to address it? And what do you think is the cause?

CH: The FEVS scores come out earlier for agencies than the rankings come, so we’ve had that information for quite some time. We’ve been able to start to address it.

I think there are a few causes. It’s difficult for an agency to be without political leadership for an extended period of time. That had a significant impact on morale on the agency. I think the pandemic had a significant impact. There are a lot of unique aspects to our agency that have caused it to come to this.

What we’ve done is initiated what we call the Continuous Improvement Team to try to address the issues identified as most ripe for improvement through the FEVS and our own internal surveys. The four areas we’ve identified we need to work on most are:

  • Innovation
  • Management communication
  • Employee input on decision making
  • Work-life balance

This team got under way earlier this year. We have a Professional Association, otherwise known as a union, at our agency. We have members of the Professional Association and managers on the Continuous Improvement Team working together, as well as employees from other areas of the agency outside of the bargaining unit.

We’ve already engaged employees on the topic of innovation, regarding where and how folks feel the agency is not supporting innovation. In order to fix it, we first need to know what people mean.

The FEVS is a great starting point, but it doesn’t give you all the answers.

We need to be willing and able to engage to find out: What do you mean by innovation? How can we do better? What does innovation mean to you? We have to get in deep on these topics and find out ways we can take action.

The Continuous Improvement Team anticipates making recommendations on innovation this summer, which will be followed by more communication, and trying to figure out action items, and then we’ll move onto the next topic.

Listen, we have to try to improve. If we’re not trying, we’re not going to improve. I think we have the most dedicated and intelligent and mission-oriented employees in the entire Federal government. I want them to be happy and I want to understand what will make them happier.

I’m grateful for the FEVS and grateful for the Partnership for Public Service that enables us to look into these issues. We’re looking forward to finding out everything we can do to make things better.

One other thing. This is really important. One of the questions on the FEVS that concerns me most is: “I don’t think my response to the survey is going to make a difference.”

I can assure the employees at our agency that is absolutely false. We are taking these things very seriously. We’re devoting a lot of time and effort to analyzing the FEVS results over five years to try to isolate these areas, to figure out what can be better. We’re putting the time in to have a continuous improvement team.

I really hope people understand we’re taking it very seriously.

One of the areas employees identified is they fear reprisal for voicing concerns. We’ve done a lot of work to try to address that. We’ve done extra training for managers and supervisors this year to address how to handle employee’s perceptions regarding reprisal, how to better communicate.

This is our mission. We need to walk the walk and talk the talk. I want to make sure that’s something everyone knows. That’s something I can do as a leader from the top down to ensure that we don’t tolerate retaliation against any employee.

DG: Henry Kerner was sworn in recently as the third Board member. How important is it for the Board to have all three members?

CH: Two things.

First of all, we’re a bipartisan independent agency. So, having representatives from both parties makes us a better Board. It makes us more credible to the Federal employees we serve and to the public as a whole. You’ll see most of our decisions are unanimous, the vast majority, and I expect that to continue with Mr. Kerner joining us. That’s because the Board has built up a very robust body of law over the past 40 years, and it doesn’t matter what political party you’re a part of: We all support and protect the merit system.

That’s the first thing. It makes us more credible.

The second thing I’m particularly excited about is Henry can help us to get these cases out. The more the merrier, as far as I’m concerned. Henry is a great guy. He’s rolled up his sleeves. He’s already voted, and we’ve already issued some of the cases he’s voted on. We’re happy to have him. He’s a real pleasure.

[email protected]

Related Training

Lack of Date Specificity in Proposal Not Always Due Process Violation

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By Deborah J. Hopkins, July 17, 2024

Quick facts:

  • Due process requires specificity in charges
  • When incidents of misconduct are clear – such as exposing a penis in the workplace or smacking a coworker on the buttocks – the date might not need to be specific
  • If an appellant, by his response, indicates he is aware of the misconduct charged, it weakens his argument of a due process violation

One of the fundamental elements in an adverse action against a Federal employee is for the agency to provide the employee with due process: a notice of the charges against the employee and any material relied upon, an opportunity for the employee to respond, and an impartial decision. 5 USC §§ 7503(b), 7513(b). As part of the notice step, the charges are required to be specific and detailed so the employee can make a meaningful reply. See Mason v. Navy, 70 M.S.P.R. 584 (1996); Pope v. USPS, 114 F.3d 1144 (Fed. Cir. 1997).

A recent MSPB case involved an employee who was removed on a charge of conduct unbecoming, with six specifications of sexually inappropriate behavior, including comments, touching, and exposing his penis in the workplace, Lewis v. Army, DC-0752-18-0856-I-1 (May 20, 2024)(NP). The administrative judge affirmed the removal, finding the agency proved five of the six specifications. The appellant filed a Petition for Review, challenging that his due process rights were violated by the lack of detail and specificity in the dates and locations the agency provided in the proposal notice.

Consider the below specifications (taken word for word from the case, but with some quotes and internal citations omitted for ease of reading), and see if you agree:

  • Specification 1: On multiple (approximately four) occasions during the period on or around June 2017 through January 2018, you kissed [your coworker] on her cheek during work hours in workspaces, such as by the water fountain, exiting the women’s restroom or in the hallway.
  • Specification 2: On one Friday between June 2017 and January 2018, when [your coworker] was leaving the Payroll office, you smacked [her] buttocks with your hand.
  • Specification 3: Between June 2017 and January 2018, on multiple occasions, primarily while [your coworker] was passing the hallway and once when she was sitting in [your supervisor’s] office, you held a paper towel dispenser roll to your genital area implying the size of your penis, and on one of these occasions stated, “In case you were wondering.”
  • Specification 4: On or around Fall 2017, when [your coworker] was in the payroll office, you walked by her and told her, “One night with me, and you won’t want to be with your husband.”
  • Specification 5: On 24 May 2018, while you were sitting down on your chair facing towards the walkway, you exposed your penis in full view and were taking pictures of your penis with your cellphone in your cubicle.
  • Specification 6: In early winter of 2017, you went to [your coworker’s] office while she was working alone, you walked behind [your coworker], who was sitting in her chair, and you placed both of your arms around her. Your face was touching her cheek, and you whispered in her ear, “I noticed your leave was low, and I am known for padding people’s leave for ‘special favors.’” She rebuffed you. You kissed her cheek on your way out and told her, “Let me know if you change your mind.”

So, FELTG reader, what do you think? Specific enough to satisfy due process, or not?

The Board considered the appellant’s arguments. While it held the locations were specific, it agreed with the appellant that the notice was not specific about the times and dates of the alleged conduct; each specification identified a range of several months’ time (for example, “between June 2017 and January 2018”). The Board compared Lewis to a lead case (one we also will discuss during MSPB Law Week September 9-13) where a lack of specificity in the dates attached to the charges indeed violated the appellant’s due process: Mason, supra. The Board then distinguished Lewis from Mason:

[W]e decline to interpret Mason so broadly as to impose a due process requirement that agencies, in all cases, affix a specific date to alleged misconduct. This is particularly so in cases like this one, where the agency itself lacked sufficient information to narrow down the occurrences to specific dates. A blanket rule imposing such a requirement could effectively prevent agencies from disciplining employees when it is unclear exactly when their misconduct occurred, and we do not think that this would be a desirable outcome.

Lewis at 6.

The Board went on to explain three additional reasons why the events in Lewis can be distinguished from Mason:

  1. The agency provided the appellant in Lewis with an approximate range of dates (up to about 6 months) for each specification, whereas the agency in Mason did not even notify the appellant of the year when he was alleged to have committed his misconduct.
  2. The agency offered the appellant in Lewis all the information it had concerning the dates for the specifications, whereas the agency in Mason withheld such information even though it could have supplied it.
  3. The agency in Mason surprised the appellant at the hearing by eliciting testimony about the precise dates of the alleged misconduct, but there was no such surprise for the appellant in Lewis.

Id.

In addition, the appellant in Lewis indicated by his responses that he understood the events in question that led to the charges. Because of these significant differences, the Board held that the lack of specificity on the dates in Lewis was not so egregious that it deprived the appellant of a meaningful opportunity to respond. The Board upheld the removal and closed the case by saying:

In sum, although a more specific proposal notice may have offered the appellant additional bases to challenge the proposal, due process did not require any greater specificity under the facts of this case. The proposal notice disclosed all of the known facts with respect to time and place, and it was otherwise sufficient to put the appellant on notice of the reasons for his removal. We find that the administrative judge made no error in analyzing the appellant’s due process defense. The appellant has not challenged the administrative judge’s findings on the agency’s case in chief, and we find no reason to disturb them.

[email protected]

Training on this Topic:

The Good News: Smile and Beware, Your Home Office is on Camera

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By Ann Modlin, July 17, 2024

Office space is a home away from home. Or let’s face it, in 2024, your office space very well may be your home. However, a home office can be very visible to your colleagues, and some rules apply to what you display in your home office.

When everyone worked in office buildings, people took great pride in decorating their personal office spaces. Some people created brag walls full of diplomas and awards. Lots of office spaces displayed family and pet photos. Landscapes, artwork, or child-crafted pottery often appeared. Some people without windows put up fake windows on their walls. The goal – make the workspace a pleasant place to spend a good portion of one’s life.

Post-pandemic, a substantial portion of Federal employees work from home one or more days per week. The advent of Zoom and Teams and WebEx enables colleagues to see each other’s workspaces on camera.

A home office can feel more personal, so people may be more careless about what they display. An office in a Federal building is not likely to house an unmade bed. But that can appear in a Zoom meeting. What about someone using their Peloton bike (and wearing workout clothes) during a Teams meeting? Not likely to happen in a Federal building. According to some of my sources, it happened on Zoom.

What guidance is out there regarding appropriate home office displays? Not a lot, quite honestly. But, there are two potential home office minefields that managers, advisers, and employees need to understand.

First, displays of offensive objects can create a hostile work environment under equal employment opportunity laws. The EEOC clarified in its recent “Enforcement Guidance on Harassment in the Workplace” that “conduct within a virtual work environment can contribute to a hostile work environment.” https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace (April 29, 2024). This would include, for example, “racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting.”

Second, the Hatch Act applies to home offices. The Hatch Act prohibits Federal employees from engaging in political activity while on duty. In April 2020, the Office of Special Counsel (the entity that enforces the Hatch Act) issued guidance about the application of the Hatch Act to teleworking employees. Hatch Act Advisory for Teleworking Employees, Office of Special Counsel (April 28, 2020) (Advisory).

The Advisory explains that “[e]mployees participating in virtual work-related conferences are subject to the same on-duty Hatch Act restrictions as when they attend meetings or communicate in-person with others at work.” The Advisory specifically notes that employees “should ensure that any partisan materials, like campaign signs or candidate pictures, are not visible to others during the call.” Also avoid wearing campaign t-shirts or hats while on virtual conferences.

I think practical guidance is worthwhile on this subject, too. If you would not display something in a Federal building, you should not display it in your home office.

An office – whether in a Federal building or a home – should be a place where anyone would feel comfortable. There are lots of ways to do that without being offensive, inappropriate, or in violation of the Hatch Act.  And that’s Good News! [email protected]

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How Long is Too Long for Delay on Reasonable Accommodations?

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By Frank Ferreri, July 17, 2024

They say patience is a virtue. Does that mean the interactive process on an employee’s reasonable accommodation can go at a snail’s pace?

Not according to the court in Pelton v. DeJoy, No. 19-1766 (D.D.C. May 3, 2024), which indicated a four-year timeline between request and accommodation would be a delay too long to withstand a failure-to-accommodate challenge under the Rehabilitation Act.

The case involved an attorney hired by the U.S. Postal Service in 2013. Her disabilities included a spinal cord injury, cervical fusions, bilateral thoracic outlet syndrome, nerve damage, depression, and a genetic clotting disorder. During her time with the USPS, the attorney was diagnosed with or treated for peripheral nerve entrapment, carpal tunnel syndrome, tendon and ligament tears, tremors, anxiety, depression, chronic insomnia, and weight gain.

The attorney said she requested an ergonomic chair, desk, keyboard, and mouse during her first week on the job. She presented these requests to the employee who conducted her orientation, however, was told that there was no room in the budget. Instead, she was shown “a room full of broken office equipment” from which she was expected to select something that would work for her.

In 2014, the attorney received an ergonomic keyboard and mouse. In 2017, she received an ergonomic chair and desk.

Because of the failure of the USPS to accommodate her disabilities, the attorney allegedly developed tendon and ligament tears as well as pain.

In 2017, the attorney’s responsibilities changed, requiring her to perform additional typing-intensive work. The attorney’s doctor said she was to limit typing to only 20 minutes per hour and no more than three hours per day. Upon receiving this information, the USPS referred the attorney to the USPS’s reasonable accommodations committee, which began the interactive process.

Along with the ergonomic chair and desk, the attorney also received voice-dictation software.

Nonetheless, the attorney sought and received Family and Medical Leave Act leave before suing under the Rehabilitation Act for a failure to accommodate.

To establish a failure to accommodate claim, an employee must show:

  1. She had a disability within the meaning of the Rehabilitation Act.
  2. Her employer had notice of her disability,
  3. She was able to perform the essential functions with accommodation and
  4. Her employer denied her request for a reasonable accommodation.

In the attorney’s case, only the fourth factor was in dispute. She alleged that the USPS unreasonably delayed in granting her requested accommodations. The court sided with the USPS on the keyboard and mouse, reduced typing time, and voice-dictation software. However, it found triable issues regarding the attorney’s request for an ergonomic chair and desk.

Although it was disputed as to whether the attorney asked for the chair and desk as early as 2013, the court found that it was a question for the factfinder to decide.

“A reasonable jury could find that she requested an ergonomic chair and desk in 2013, that her request went unfulfilled for four years, and that such delay was unreasonable,” the court wrote.

The court noted that case law hadn’t set a bright line on how long is too long but found guidance from the following:

Ward v. McDonald, 762 F.3d 24 (D.D.C. 2014). In a footnote, the Ward court noted that the three months that passed between when the employee made her request and when she resigned was “no long delay” and rebuked the employee for cutting the interactive process short and “blam[ing] her employer for not immediately granting her specific request.”

Faison v. Vance-Cooks, 896 F. Supp. 2d 37 (D.D.C. 2012). The agency did not offer an explanation for a more-than-three-year delay in providing an accommodation other than to say that it was not “in any way intentional.” The court found the agency didn’t reasonably accommodate the employee’s need for voice-activated computer equipment.

Mogenhan v. Napolitano, 613 F.3d 1162 (D.C. Cir. 2010). This case suggested a three-year delay would be actionable, but noted that the employee in the case, who had sinus problems, didn’t give a date for when she attempted to start the interactive process. She didn’t have a basis to argue that the interactive process took so long as to constitute a failure to accommodate.

While the attorney’s case and the precedent cases don’t necessarily lend themselves to a hard-and-fast rule, common sense notions of “reasonable” should prevail. There are also a number of EEOC cases that discuss accommodation delays. If the interactive process is shifting from a months-long process to a years-long ordeal, it’s likely going too slow, and the agency may find itself in failure-to-accommodate troubles. [email protected]

Training on this Topic:

 

 

 

Be Prepared and Avoid a Deposition Conniption

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By Dan Gephart, July 17, 2024

A search on YouTube will bring up dozens of videos of famous people from presidents (Bill Clinton and Donald Trump) to pop stars (Justin Bieber, Pharrell Williams) providing testimony in a deposition.

God forbid you find a video of any of the several depositions of Ye. The rapper/design mogul/former Presidential candidate, previously known as Kanye West, has testified under oath that he’s “from Earth” and the “smartest celebrity you’ve ever met” and called an opposing attorney “f-cking stupid.” During one deposition, Ye put on a head covering with the image of Jesus Christ. Even though it “fully covered his face and muffled his voice,” he refused to take it off.

But depositions aren’t just for cases involving the rich and famous. And those being deposed are rarely as outlandish as Ye. (Notice I said rarely, not never.)

In the world of Federal employment law, depositions are an integral part of the discovery process and a critical step in preparing for a hearing before the Merit Systems Protection Board or Equal Employment Opportunity Commission. As we did our own preparation for the upcoming Hearing Advocacy: Presenting Cases Before the MSPB and EEOC virtual training (1-4:30 pm ET on August 13-14), we decided to answer some recurring questions about the deposition process.

What is the purpose of a deposition?

The National Institute of Justice defines deposition as the “recorded sworn oral testimony of a party or witness before a trial.” Depositions allow parties to “explore the strengths and weaknesses of the opposing party’s case.”

Depositions provide the opportunity for attorneys to:

  • Discover information.
  • Lock witnesses into their story.
  • Gather evidence.
  • Gauge credibility of witnesses.
  • Preserve testimony of witnesses.

Are there situations where a deposition would not be a good idea?

Absolutely. Avoid depositions when you’re worried it could provide the opposing party insight into your case tactics or give them an opportunity to evaluate you. Also, there are times when the report of investigation provides all the information you need.

Are all depositions videotaped?

Under 5 C.F.R. § 1201.75, depositions may be taken by any method on which the parties agree. Depositions can be recorded by sound or video, and those recordings are supplemental to a transcript by a certified court reporter. The party requesting the deposition is responsible for hiring a court reporter and paying the court reporter costs.

How do you best prepare for a deposition?

FELTG instructor Katherine Atkinson suggests the following steps of preparation:

  • Review prior statements.
  • Determine which exhibits to use.
  • Paginate the number of the exhibits in advance.
  • Copy the exhibits in advance.
  • Prepare a list of questions, keyed to exhibits.
  • Prepare a witness binder and your binder.

Any advice for supervisors who are deposed? 

  • Be ready to answer leading or nonleading questions.
  • Ignore the conflict around you, whether it is attorneys arguing or objecting to a question.
  • Stay focused on the questions being asked.
  • Do not act like Ye. [email protected]

Training on this topic: