Establishing a Successful Good Faith Defense to Compensatory Damages in Failure to Accommodate a Disability Cases

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By Deryn Sumner, June 14, 2017

Section 102 of the Civil Rights Act of 1991 allows for the agency to escape liability for compensatory damages where the agency failed to accommodate an employee’s disability, if the agency can demonstrate it made a good faith effort to accommodate the complainant.  Such determinations are factually-based, but can be an effective tool in settlement negotiations if the agency can demonstrate that it attempted to accommodate the employee, even if those efforts were ultimately not successful.

However, many times the Commission will hold that an agency can’t make such a showing.  For example, failing to engage in the interactive process and sending an employee for an unlawful fitness-for-duty examination means you can’t raise a good faith defense, see Arnold C. v. USPS, EEOC Appeal No. 0120093856 (November 3, 2015), removing the complainant from employment instead of accommodating her kills a good faith defense, see Geraldine B. v. Veterans Affairs, EEOC Appeal No. 0120090181 (October 13, 2015), and not responding to a complainant’s emails requesting an accommodation certainly prevents an agency from arguing that it acted in good faith, see Complainant v. Homeland Security, EEOC Appeal No. 0120132360 (July 9, 2015).

Let’s explore a recent decision from EEOC’s Office of Federal Operations addressing this defense.

In Joi J. v. Veterans Affairs, EEOC Appeal No. 0120150921 (March 3, 2017), the Commission found that the agency failed to provide an accommodation to complainant by not allowing her to be exempt from on-call duties in her position as a Certified Registered Nurse Anesthetist.  The Commission found it persuasive that the agency could not establish how allowing this accommodation would have caused an undue hardship, noting that the complainant had been exempt for more than two years.  The Commission also found that the agency failed to accommodate the complainant when it did not consider reassignment after concluding that she could not be exempt from her on-call duties.  The agency argued that a search was not necessary because “Complainant produced no evidence that such a search would be fruitful.” The Commission was not convinced, and noted, “because the Agency had access to information about vacant jobs and jobs that were likely to become vacant, the Agency had an obligation to conduct a job search, and it is uncontroverted that it did not do so. Further, more than two months elapsed between the March 20, 2013, submission of Complainant’s reasonable accommodation request and supporting medical documentation and the Agency’s June 7, 2013 denial, and there is no explanation for the delay by the Agency. Accordingly, we do not find that the Agency made prompt ‘good faith’ efforts to reasonably accommodate Complainant. Therefore, the Agency is not insulated from providing Complainant with an appropriate award for compensatory damages based on our finding that it violated the Rehabilitation Act.”

This isn’t to say that the defense can’t be asserted, but the agency must be able to show that it really did attempt, in good faith, to accommodate an employee in order to escape liability for compensatory damages. [email protected]

The Fate of Political Appointees

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By William Wiley, June 14, 2017

Oh, so many questions do we get. And this one is asking to peer into the secret world of political appointment.

Dear FELTG Know-it-Alls:

I have a question about something you posted in your 5/24/17 post entitled, “Big News in Whistleblower Land.”

Your post stated that Principal Deputy Special Counsel Mark Cohen is set to become Acting Special Counsel after June 14–the end of Special Counsel Lerner’s holdover period.  However, how are political appointees like Mr. Cohen permitted to stay beyond the tenure of the politically-appointed agency head?

My recollection is that all of the political appointees under the last two Special Counsels left when the agency head left.  That office did not have any political appointees again until Ms Lerner joined OSC in 2011.  I don’t understand why it would not be the same with Ms Lerner.  Thank you for any clarification you can provide. 

Best regards, A Confused Reader

And our always-insightful FELTG response:

Dear Confused Reader-

There’s nothing automatic about the end of a political appointee’s status as an employee. When a new agency head replaces the outgoing political appointee, the fates of the remaining political appointees are in the hands of the new appointee.

For example, I was a political appointee under the Chairman at MSPB. When his term expired, the Vice Chairman automatically became the Acting Chairman. She asked me to stay around as an adviser to her, which I did. I’ve known of political appointees who have held over like that under six different agency heads, serving as a political appointee under five Presidents for nearly 30 years.

At OSC, there is no individual identified to automatically replace the Special Counsel once her term is up. Therefore, it is up to White House personnel to decide who will be the acting agency head. They could have picked an old senior career guy who then would have decided what to do with the holdover political appointees. Instead, the White House chose to appoint a holdover political appointee, Mark Cohen.  If Henry Kerner is confirmed as the new Special Counsel, he will then decide what to do with the Obama holdover politicals.

Many subordinate political appointees realize that their time is short when an agency head departs. Smart ones start looking for replacement employment long before that happens, as there’s no way to tell what will happen when the new agency head arrives. That’s why you often see the whole team of political appointees leave an agency when the agency head leaves. They are reasoning that it is better to control one’s own fate than to leave it up to vagaries of the political processes.

Want to be a political appointee at OSC? Now’s your chance. Make friends with Henry Kerner and you could well be the new deputy (if your politics are right).

Best of luck. [email protected]

When is Front Pay an Appropriate Remedy?

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By Deryn Sumner, June 14, 2017

Although not addressed very often in decisions awarding remedies, front pay is an available remedy in federal sector EEO complaints.  As Management Directive 110, Chapter 11 tells us, it is only appropriate in very limited circumstances: (1) when there’s no position available to which an employee can be reinstated; (2) where a subsequent working relationship would be antagonistic; or (3) where the employer has a long-term resistance to anti-discrimination efforts.  In order to receive a front pay award, the complainant must be able to perform work, but cannot do so because of circumstances external to the complainant.

For example, in a case that did not address the award of front pay, but rather a procedural issue, the Commission noted an administrative judge’s finding in Mason H. v. Veterans Affairs, EEOC Appeal No. 0120170667 (April 13, 2017), that the agency had poisoned the employment relationship with the complainant so much “that a reasonable physician in his situation would seriously consider suicide.” The decision does not go into such detail about the underlying allegations, but it appears the agency accused the complainant of using illegal drugs when he had not, and accused him of patient endangerment, both serious accusations for anyone, but particularly a physician.  [Editor’s Note: In my humble opinion, a federal agency should not be holding that “reasonable” people in this situation, physician or otherwise, “would seriously consider suicide.” I was a psychologist before I was an employment lawyer. The definition of “reasonable” does not include serious suicide consideration.]

Being able to return to the workplace is a key part of being eligible for an award of front pay, as the complainant in Nicole T. v. Department of Defense, EEOC Appeal No. 0120143019 (January 11, 2017) learned.  Although the administrative judge found that the agency failed to accommodate the complainant and sent her home from work, undisputed medical evidence established that within three weeks of being sent home from work, the complainant was unable to work and had not presented evidence that she could return to the workplace.  The complainant had subsequently filed for disability retirement.  As the complainant could not demonstrate an ability to work, besides compensatory damages, the Commission only awarded her the back pay for those three weeks and no front pay.

If you are dealing with a claim for front pay in one of your cases, you must read the Commission’s 2011 decision in Knott v. USPS, EEOC Appeal No. 0720100049 (July 5, 2011).  There, the Commission addressed an administrative judge’s award of front pay “from the issuance of his decision to the time Complainant either finds comparable work or reaches full retirement age.”  The decision includes substantial discussion of the record that led to this award and is required reading for anyone facing this issue.  [email protected]

What the Devil are Essential Functions?

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By William Wiley, June 14, 2017

I wish I was as smart as Ernie Hadley and Deb Hopkins. Ernie and Deb teach the fabulous FELTG EEOC Law Week seminar at least twice a year. A big part of that program is an explanation of an agency’s obligation to accommodate an employee’s disabilities. To understand that responsibility, an agency practitioner must be able to identify the “essential functions” of the position occupied by the disabled employee.

So exactly what is an “essential function”? As Ernie and Deb explain it, summarizing from 29 CFR 1630.2(n)(2), here are factors to consider in determining if a job function is an essential job function (rather than just a non-essential function):

  • The reason the job exists is to perform that function
  • There are a limited number of employees available to perform the function
  • The function is highly specialized such that incumbent is hired based on expertise or ability to perform that function

To determine which functions are essential and which are not, Ernie and Deb summarize from 29 CFR 1630.2(n)(3) to identify relevant factors:

  • Employer’s judgment on functions that are essential
  • Written position description
  • Essential function must be one that the employer requires employees to perform
  • Time spent on function
  • Size of the employer’s available workforce
  • Employment history of other employees previously or currently in the position at issue
  • Consequences if not performed, and
  • Terms of collective bargaining agreement

Once we identify a job’s essential functions, we then have the employee take those functions to her physician for assessment. The physician’s assessment involves the answering of three questions relative to each impacted essential function:

  1. What is the expected duration of a medical limitation that would prevent the employee from performing the function?
    • This information helps the agency determine whether the medical problem actually meets the legal definition of “disability” and if so, what accommodation might be reasonable.
  2. Is there an accommodation that the agency can provide that might help the employee perform the function?
    • If the physician says “no,” and the agency cannot identify an accommodation after discussing the matter with the employee, then the next step is to try to find the employee a vacant position in which he can perform acceptably with the disability.
  3. If the physician recommends an accommodation, what is it and how will it allow the employee to perform the function?
    • The physician’s recommendation is a good starting point, but of course, as Deb points out in the first article in this edition of our newsletter, the agency retains the right to determine which accommodation it will provide if more than one is reasonable.

And here’s where I hit a disconnect between what EEOC’s regulations say we are to do and the reality of getting an analysis from a health care provider. It seems that EEOC wants us to identify a job duty as an essential function, one that might be found in a position description; e.g., “cases mail” from the position description of a mail carrier. But if we ask the physician to tell us if the employee can “case mail,” how does the physician know what the physical and mental requirements are to do that work? Does it involve moving things around? If so, what size and weight might those things be?

I was working with a client several weeks ago, a client trying to figure out how to accommodate a disabled employee. The client dutifully read the employee’s PD, considered the factors listed at 29 CRR 1630.2(n)(3), and determined that an essential function of the position was “timekeeping audit.” As I was drafting the memo requesting that the employee obtain his physician’s analysis of the function in consideration of the employee’s disability, I was struck by how little information we were providing to the health care provider, information on which we are asking the provider to base a medical determination critical to the employee’s continued employment prospects. I guess the provider could ask the employee what the physical and mental requirements are to “audit timekeeping,” but do I really want the employee providing that information to the physician? Shouldn’t it be management who decides what the mental and physical requirements are of a position?

So instead of just telling the physician that the employee needed to perform the essential function of “timekeeping audit,” I came up with the following derivative functions:

  1. Must be able to think objectively and analyze mathematical information.
  2. Must be able to communicate orally and in writing.
  3. Must be able to work in stressful situations sometimes involving confrontation with coworkers.

These functions seem to me to be different from what EEOC is asking for. They are not “the reason the job exists,” but rather physical and mental tasks the employee must perform to accomplish the job. Still, they seem to me to be more realistic requirements to ask the health care provider to assess than simply saying “cases mail.”

Fortunately, Ernie and Deb understand EEOC regulations better than do I. They do a terrific job of explaining this stuff to our seminar participants. As for me, thank goodness they can do it so that it is not an “essential function” of my position. If it were, I would need to be on the lookout for a vacant job into which I could be reassigned where I don’t have to understand EEOC.

Now, wouldn’t that be just lovely. [email protected]

More Regarding Dangerous Employees in the Workplace

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By William Wiley, June 6, 2017

Questions; we get thoughtful and important questions. The one below came about because of our recent newsletter article that provided guidance as to what to do when a supervisor is confronted with an employee who threatens suicide.

Good Morning – and thanks for your May 17, 2017 newsletter. 

Mr. Wiley’s article provided some clear guidance for those scenarios in which a supervisor has been able to conclude that it is more likely than not that the employee is a danger to herself or to others in the workplace.  The question that often comes up, however, is how to make that initial assessment.  Is it enough for an employee to break down crying and talk about suicide for us to decide that it is more likely than not that the employee is a danger to herself or others in the workplace?  What if the employee simply has an emotional meltdown that s/he states is due to being stressed about increased workload and acts out (crying, yelling, kicking office furniture) but does not mention suicide?  In short, does the employee need to mention suicide before these options kick in?

If you can provide some guidance on this issue, it would be most appreciated. 

And our super-responsive FELTG answer is as follows:

Dear Reader-

Thanks for your question. This is serious stuff and I’m glad that you’re working on it.

The standard for preventing someone from coming to work is the frustratingly vague standard of “reasonableness.” Would an objective person viewing the facts as they exist at the moment conclude that it is more likely than not (preponderance) that the employee is a danger to himself or others?

Here’s the good news. The supervisor’s judgment that it is unsafe to allow the employee to remain in the workplace is not easily subjected to challenge. That’s because by keeping the employee in a pay status immediately and during the notice period of a proposed indefinite suspension, you have not constructively suspended the employee. Therefore, no MSPB right to appeal and hopefully no grievance rights, either (depends on your CBA and agency grievance policy).

Once the decision to implement the indefinite suspension is issued, the employee can appeal to MSPB. However, by then you should have the employee’s response to the proposal, additional evidence to bolster your conclusion that it was reasonable to exclude him from the workplace.

There is the possibility that the employee could mount a failure-to-accommodate EEO complaint. However, that would be tricky for him to frame, with an answer coming down perhaps years in the future as to whether the supervisor acted reasonably. By then the thing is done and any remedy will most likely be limited.

In addition, employees can always claim that actions like this are whistleblower reprisal, unfair labor practices, or even mistreatment because of veteran’s status. However, those claims place the burden on the employee to prove, and again will be adjudicated far into the future after the immediate danger has been resolved.

Bottom line:  These are life and death situations. In the FELTG world, we always err on the side of saving lives of civil servants. With that in mind, we believe the bar for what is reasonable should be set exceedingly low. If this is a topic of interest to you, attend our training workshop Handling Behavioral Health Issues and Instances of Violence in the Federal Workplace July 26, 2017 in Washington, DC.

By the way, if I were in a policy position in an agency, every attorney, HR specialist, and maybe even front line supervisor would have a prefabricated template that proposes an indefinite suspension and demands medical documentation in cases like this. These are emergency situations that require immediate action. We don’t have time to start from scratch when they occur. The template should require only that the employee’s name and the date be inserted. Then, the proposal should be issued post haste. [email protected]

The End of Times

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By William Wiley, May 23, 2017

It seems as if I spend most of my waking hours in an airplane flying somewhere. Giving all the wait time, the no-computers time, and the just-plain-tired time involved in those odysseys, I have lots of time to think. Lately, I’ve been thinking about why we have civil service protections. As both Capitol Hill and the White House seem intent on modifying or doing away with some or all of those protections, I thought it might be helpful to get some of those 35,000 feet high thoughts out there, should anyone care to consider them.

Since 1912 in our great country, we’ve had laws that protect civil servants from arbitrary or just plain evil mistreatment. Prior to that date, a civil service job was purely patronage. You work for some guy to get elected, that guy will work for you to get a good government job. I’ve even seen ads in old newspapers from the late 1800s in which individuals were advertising that they would be willing to pay hard cash for a good government position. Once employed, you could be fired for any reason: politics, misconduct, or a bad haircut. It didn’t really matter.

Congress eventually decided it didn’t like this approach to government employment. Therefore, it passed the Lloyd-La Follette Act early in the last century, from that point forward guaranteeing that federal employees could be fired only for such cause as supported an efficient government. That’s where we got the rule requiring nexus between misconduct and a government function, and the right of federal employees to have bad hair (unless their haircut is somehow related to the work they perform as a government worker, of course).

The theory of our civil service embodied in the Lloyd-La Follette Act is this: our country needs a cadre of meritorious employees who work for the people, not necessarily for any political party. Therefore, federal workers need some sort of protection from mistreatment (e.g., firing) by the political appointees who are brought into government to temporarily run it during any particular administration. The trade-off for federal workers is that they can no longer get a government job just because of their political connections, their political activities are restricted by the Hatch Act, and they cannot buy jobs off of Craig’s list. Those of us who have taken the oath and become civil servants have accepted this as a fair deal.

With this theory in mind, consider a hypothetical scenario for a moment. Let’s say that you are an Evil Political Overlord (EPO) appointed by the President to run some part of a federal agency. Then, pretend that you are intent on infusing your own personal political agenda into your agency, regardless of the civil service protections and in contravention of the principle embedded in the Lloyd-La Follette Act. Which of the following groups of employees would you most want to be able to fire without having to explain yourself outside of your agency?

  1. Senior executives who run the place, or
  2. Rank and file employees who do the grunt work

Well, if you’re like most EPOs, I have to believe that you would want the unreviewable right to fire your top bosses, the senior executives who supervise everyone else and who tell them what to do. Why bother with trying to get the hundreds of janitors and the file clerks to do your evil bidding when you can simply get one of your subordinate executives to do it for you.

The Sith Emperor in Star Wars had to control only his senior executive Darth Vader to rule large parts of the Empire. Boy, oh, boy … did those guys have a tough performance appraisal program.

Now that we’ve played with our hypothetical, may I be among the first to welcome you to the bold new world of the federal civil service. Recently, eight well-meaning senators introduced a bill entitled the “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017.” If enacted, that legislation would set aside a fundamental principle of our civil service, that federal employees who are fired have a basic right to have someone outside of their employing agency review the reasons for that firing, and determine if the employee has been treated fairly. For the last 40 years, that outside review has been conducted by the independent US Merit Systems Protection Board. Here at FELTG, we are among the first to criticize MSPB when we think they have missed something. At the same time, we are Number One in defending the concept of Board overview of removals and other serious discipline as a vital component of a protected core federal workforce. We think that MSPB is trying to do what Senator Robert La Follette wanted back in 1912 when he drafted legislation to de-politicize the federal civil service.

Ah, I can just hear all you smarty-pants practitioners out there, snickering among yourselves that Old Bill is once again crying wolf, stirring up concerns where concern is not warranted. This bill applies ONLY to Title 38 employees and ONLY to SES-level individuals at the Department of Veterans Affairs. Since that is a miniscule part of the two hundred million-plus federal workforce, why sound the alarm now? Congress would never take away the rights of other civil servants to challenge their dismissals outside of their employing agency.

Well, my friends, think of it this way. If you’re the Secretary of – say – Defense (or Homeland Security or Whatever), and you’re playing golf with your buddy who happens to be the Secretary of Veterans Affairs, how are you going to take it when he regales you with stories of how easy it is for him to fire executives while you’re over at DoD suffering through layers of MSPB appeals/discovery/hearings just to get rid of one of those little devils? Are you going to say, “Gee, Dave, I’m so happy for you. Clearly, it’s more important for you to have greater control of your executive service than it is for me. I couldn’t possibly go to my oversight committee and ask for a similar arrangement. Why, I almost look forward to the administrative hurdles awaiting me when I need to fire somebody.”

And if you are the Secretary of Veterans Affairs, how long will it take you to realize that if it’s good enough for your senior executives, why wouldn’t it be good enough for your other employees? Heck, just think of all the money you can save if you don’t have to subscribe to cyberFEDS© any more.

Here at FELTG, we are GS-zeros. We have no clout and we make no decisions for the government. If the Big Guys who do make big decisions decide that the civil service has had a good run and we should move on to agency-limited review rights, so be it. Maybe that’s a better way to run America than we have had the past hundred years or so. We just hope that the decision-makers understand fully the path they are opening up, and the slipperiness of taking away the external appeal rights of even a small group of career federal employees. If this legislation becomes law, the endtime for our civil service will be a step closer than it is today. To quote Lord Vader, “I sense something; a presence I have not felt since …” Perhaps he was sensing the end. [email protected]

How to Handle a Dangerous Employee

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By William Wiley, May 17, 2017

Last week, senior team members of our training group presented a webinar on the psychological aspects of employees with mental conditions and related supervisory obligations to accommodate a disability. It was one of the most widely received programs we’ve presented this year, so you can expect to see it again soon in some form, in case you missed it. When an employee with a mental condition poses a threat in the workplace, the information we provide in seminars like this can save your life.

One concern in situations like these from the employment law aspect is this:

What should a supervisor do when confronted with an employee who appears to be a danger to himself?

A classic example is the employee who says to his supervisor, “I’m so upset about how things are going around here that I’m thinking about committing suicide.” According to USA Today, there is a suicide every 13 minutes in the United States. Applying general suicide statistics to the federal workforce without tweaking for the specific demographic, we can expect about 850 federal employees to commit suicide this year. So when an employee says to her supervisor, “I’m thinking about killing myself,” there’s a real possibility she will.

Deb Hopkins and Shana Palmieri did a terrific job last week of explaining the supervisor’s options, given the psychological and reasonable accommodations aspects of a situation like this. We have an obligation to help the employee get help, while simultaneously recognizing the employee’s rights to reasonable accommodation and medical records privacy. But what do you do as a practical matter for the rest of the work day? Do you say something like, “Geez, Joe, I’m sorry you’re feeling that way. Maybe your mood will get better if you get back to your desk and work on the XYZ report that I need by the end of the day?”

I’m guessing not.

So, what do you do? Well, of the options available to you, the easiest one is to tell the employee to take the rest of the day off, to get some help and to perhaps relieve any immediate stressors. You can invite the employee to request sick or annual leave, or you can place the employee on administrative leave (if you’ve been to FELTG’s Absence and Medical Issues Week seminar, you know that you cannot place the employee on sick or annual leave without his permission). But what if the employee refuses to leave? Sadly, a number of people with mental issues do not realize that they have a psychological problem.

If you are familiar with our training programs here at FELTG, then you probably are aware that we claim to always know where the bottom line is legally when it comes to workplace dilemmas. For many years, the legal bottom-line in cases like this was not good. But now, thanks to the recent passage of the Administrative Leave Act of 2016, the answer is much better. Here’s what you do:

  1. If you can conclude that it is more likely than not that the employee is a danger to herself or to others in the workplace, you can immediately tell the employee that she is to leave the workplace and not return until she can produce medical evidence that she can perform her job safely.
    • Tell her that you will carry her in a regular pay status for 30 days to give her a chance to produce the evidence.
    • Also tell her that if she does not produce the evidence in 30 days, you will place her in a non-pay status until she does.
  2. For all you legal technicians out there, here’s what you’re doing as far as the law goes:
    • Proposing the employee’s Indefinite Suspension, see Gonzalez v. DHS, 2010 MSPB 132.
    • Placing the employee on Notice Leave, so that she gets paid during the notice period.
    • Giving the employee 30 days to respond to the proposal notice, 5 CFR 752.404(b)(1).
    • Implementing the Indefinite Suspension so that the individual is continued as an employee, but without pay until she produces medical evidence she can perform safely.

Once you initiate this approach, here are the possible outcomes and your response to each:

  1. The employee produces medical evidence he can do his job safely: You restore him to his position. It may have cost you up to 22 days of salary, but you may have saved a life. If you don’t think this a fair trade off, we don’t like you. Stop reading our newsletter.
  2. The employee produces medical evidence that he cannot do his job safely: You remove him for Medical Inability to Perform based on that evidence.
  3. The employee never responds: Six weeks after the proposed suspension, send the employee a Cook letter, explaining that if he does not produce evidence that he can do his job, you will propose his removal. Give him two more weeks. If nothing, then propose his removal based on Excessive Absence. If you don’t know the details of what all of this Cook-ing is about, you need to come to our next Absence, Leave Abuse and Medical Issues Week seminar, September 25-29, in Washington, DC.

We joke around a lot here at FELTG, as sometimes that’s the only way to get through the day. However, with this one we are deadly serious. When you have a dangerous employee in the workplace – dangerous to himself or to others – you need to be prepared to move quickly and with efficiency to do something about it. You owe it to the employee, to the coworkers and to yourself to know what to do. [email protected]

Non-Pecuniary Compensatory Damages Awards in 2016: A Brief Overview of Trends

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By Deryn Sumner, May 17, 2017

Just as I did in the June 2016 edition of the newsletter, here are some facts and figures from 2016 decisions from the EEOC’s Office of Federal Operations awarding non-pecuniary compensatory damages.  I’ll repeat my caveat from last year: this is based on my review of all of the decisions issued by OFO in 2016, which I rely on Westlaw and Lexis to accurately upload and provide to me in my search results.  Although I briefly review every decision issued each year to identify the notable ones, it’s entirely possible and quite likely that I missed a few. 

And with that caveat established, on to the trends from 2016.  By my count, the EEOC issued 34 decisions addressing appeals of non-pecuniary compensatory damages last year, a few less than the 40 decisions issued in 2015.  Of those decisions, 10, or 29.4% of the overall number, dealt with awards between $0 and $5,000.  Two decisions involved awards between $5,001 and $10,000.  The highest percentage of decisions, 13, or 38.2% of the 34 decisions, concerned awards between $10,001 and $50,000.  For those of us who aren’t math wizards (raises hand), that means that about 73.5% of decisions issued by the Office of Federal Operations in 2016 concerned awards of less than $50,000.  To round out our survey, 5 cases concerned awards between $50,001 and $100,000, and four cases involved awards over $100,000.

Of these 34 decisions, 18 of them increased the award, 15 affirmed the current award, and one (which I talk about below) decreased the award of non-pecuniary compensatory damages.  Nineteen of these decisions were appeals from Final Agency Decisions, and 15 of them were from final actions implementing or rejecting decisions from administrative judges.

Now, is this to say that complainants very rarely recover significant awards of non-pecuniary compensatory damages?  Of course not.  When there’s liability, smart agencies settle early or choose not to appeal decisions issued by administrative judges.  But it is fair to say that even those complainants who establish liability are not guaranteed a significant payday unless they can provide evidence to show substantial emotional and/or physical harm that can be linked to the agency’s discriminatory actions.

And even if you establish substantial evidence of harm and grab that golden ring of an award of the statutory maximum of $300,000, it can still be grabbed away from you, as the complainant in Alene S. v. USPS, EEOC Appeal No. 0720150033 (April 6, 2016) learned.  There, the administrative judge had awarded that $300,000 maximum after the complainant established discrimination when the agency failed to take the complainant’s medical limitations seriously and failed to accommodate her, made comments about her disability, and retaliated against her. The administrative judge found that the complainant was an example of the “eggshell plaintiff” and as the agency’s actions rendered her unlikely to ever work again, found $300,000 to be appropriate.  The Commission agreed that substantial compensation was appropriate based on the evidence she presented herself, as well as from her psychiatrist, her psychologist, and her sister.  But the Commission agreed with the agency that the award should be reduced because the complainant had pre-existing medical conditions, and the administrative judge did not factor those in.  The Commission reduced the award to $200,000, still a large award, but not the most that could have been awarded.  Rest assured, I’m already hard at work reading the over one thousand decisions issued by OFO in 2017 and will bring the notable ones to the FELTG audience’s attention. [email protected]

What Do You Do with the Guy Caught Masturbating on Government Time?

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By Deborah Hopkins, May 17, 2017

Last week, Bill and I were in Denver providing training to a bunch of supervisors from agencies across the country. One of the things we regularly discuss during training classes is why so many agencies don’t take disciplinary action against people who deserve to be disciplined. A warning: the situation I’m about to describe is crass, so read at your own risk.

Let me give you an example of one such conversation; I’ll call it a hypothetical situation. Agency employee (let’s call him Jimmy) is retirement-eligible but hasn’t yet retired. A couple of times a day, Jimmy walks in to a closet, strips down completely naked, and masturbates during his normal work hours.

The closet is one that other agency employees commonly access for supplies. There have been several instances of employees going to the closet for paper, staples, etc., and opening the door to find Jimmy in the middle of his routine.

And the agency has done NOTHING to discipline Jimmy.

Jimmy is spending quantifiable government time, paid by the taxpayers (that’s you, and that’s me), to masturbate – and the agency doesn’t take action because the supervisors “hope” he will just decide to retire. Now, I don’t know Jimmy personally but I think it’s a pretty good bet that he’s not motivated to retire because he is getting paid to pleasure himself on the clock.

If you’ve been in this business longer than five minutes, then it is not a surprise to you that many agencies have dealt with employees masturbating on government time. Here’s the deal: masturbation at work, on government time, is a removable offense. If you want to read a case involving shock and awe related to this type of inappropriate sexual conduct in the workplace, check out Jardim v. Army, CH-0752-08-0147-I-2 (July 22, 2008)(ID). In Jardim, the appellant’s removal for “immoral, indecent, or disgraceful conduct” was affirmed after evidence showed he masturbated at work and in the process exposed himself to a coworker and got semen on her jacket.

In another case, an employee’s removal was sustained after he was seen by others masturbating in a government vehicle; at a different time he masturbated in front of a female coworker. The charge there? “Ejaculating or releasing bodily fluids in a government office, while on duty.” Ever have to charge someone with that? It works. Lee v. OPM, CH-844E-06-0525-I-1 (September 18, 2006)(ID).

Need more? I’ve got them. How about Venneri v. Navy, PH-0752-05-0389-I-1 (October 19, 2005)(ID), where the appellant exposed himself to a female coworker and started masturbating in front of her? Fired and removal upheld. What about the supervisor who ejaculated onto his employee’s desk after work hours and the next morning told her he had “left a present” on her desk? Charge him with “conduct unbecoming a supervisor” = see ya later, Supervisor Wagner. Wagner v. DOJ, DE-0752-03-0466-I-2 (September 14, 2004)(ID).

Plenty more still, but I think you get the idea. Masturbating at works is serious misconduct, particularly when others are exposed to the conduct.

It’s a problem too because, in addition to being a poor management decision, refusal to discipline this misconduct puts other employees at risk and creates the potential for an EEO claim of a hostile work environment. A hostile work environment is created when the victim is subjected to unwelcome conduct that is based on a protected category, and the conduct is so severe or pervasive that it affects the terms, conditions or privileges of employment. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). An agency can absolve itself of liability only if it shows it took immediate corrective action and the complainant does not take advantage of any corrective measures. See Quinn v. U.S. Postal Service, EEOC Appeal No. 05900546 (1990).

In our non-hypothetical hypothetical above, we run into a liability problem because the agency is on notice of Jimmy’s conduct and has not done a darn thing to put a stop to it. There’s no question this is unwelcome conduct and there’s no question that it’s sexual, so the only thing we need to consider is whether the conduct is so severe or pervasive that it affects the terms, conditions or privileges of employment. How many times does another employee have to go to the closet in search of paper clips and discover a stark-naked Jimmy masturbating, in order for it to affect the terms or conditions of her employment? If every time I need office supplies, I hesitate before opening the closet door because of what I’m afraid I might find inside, I’m thinking that it doesn’t have to happen a whole lot of times to meet that legal standard of “severe or pervasive.” I guarantee you that if I see that once, I’m never ever going back for more paper clips.

Just one isolated instance of unwelcome sexual conduct can be found to be severe enough to create a hostile work environment – even if the agency does not discipline the conduct. See Weaver v. U.S. Postal Service, EEOC Appeal No. 0120065324 (2008) (a male employee ground his pelvis into a female coworker’s buttocks and EEOC found a hostile environment even though the agency did not discipline the male employee).

If you follow the news, you may have noticed last week that DOJ is in the process of making a $20 million settlement with a class of female corrections officers who were exposed to harassment based on sex for a number of years, and Bureau of Prisons officials did not do enough to correct and prevent the harassment from continuing. Among the conduct? You betcha, males masturbating in front of the women or in places they knew the women might be at any given time. See also Lemons v. BOP, EEOC Appeal No. Appeal No. 0120081287 (April 23, 2009); Wilson v. BOP, EEOC Appeal No. 01A23614 (February 3, 2004); EEOC v. Indiana Bell, No. 99-1155 (S.D. Ind. 2000).

There are times when agencies win the liability argument. In a recent case form the Federal Bureau of Prisons, a female corrections officer informed the agency of inappropriate sexual conduct by inmates (including inmates masturbating in her presence), on 17 occasions in a one-year period. The EEOC found that the inmates’ conduct did rise to the level of sexual harassment, but that the agency was not liable because it took immediate corrective action in 16 of the cases to sanction the inmates’ conduct and to protect the employee from further instances. Larae S. v. BOP, EEOC Appeal No. 0120143209 (March 9, 2017).

In another instance, employees at FAA would commonly take “dumpster breaks” at the agency facility; “dumpster breaks” were widely known among employees as code language for people masturbating behind the dumpster in back of the agency facility. Shalon C. v. FAA, EEOC Appeal No. 0120141603 (July 21, 2016). The agency won this one because employees never made management aware that the conduct was occurring and the “dumpster breaks” were routinely taken after the supervisors had left for the day – so the agency was not on notice and had no opportunity to investigate and correct it, until after the complaint was filed.

Let me be clear: even though the agencies were not liable because, as in Larae S., the BOP took immediate action, or like in Shalon C. the FAA was not aware of the conduct and could not have reasonably known it was occurring, this liability defense is NOT an excuse to allow this type of conduct at work. EEO cases are not the same as MSPB cases, and EEOC notes in most of the decisions that the conduct should be addressed in a separate forum. In Jimmy’s case, the agency leadership knows about the conduct, and has chosen not to charge anything. I hope someone from that agency reads this article and realizes it’s a situation that’s too dangerous to leave alone with the hope that Jimmy decides to finally retire.

Bottom line: why would you ever refuse to discipline someone for such serious misconduct when the conduct might create a hostile work environment for your other (good, hard-working) employees? I just don’t get it.

[email protected]

How to Handle Controverted Oral Response Statements

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By William Wiley, May 17, 2017

Questions, we get questions. This one came to us after a recent webinar we presented involving due process rights:

My question involves an issue that can arise after the reply and involves due process/ex parte communication issues.  

The FELTG newsletter had some excellent articles on this topic in 2014-2015.  The scenario I find particularly troubling arose in 2013 in the Kolenc MSPB case.  To simplify a bit, part of Kolenc’s charged misconduct was failure to pay a parking/traffic ticket. In his reply, Kolenc asserted the ticket was cancelled.  The Deciding Official (D.O.) then called the Police Department to verify Kolenc’s bald assertion and learned the ticket had not been cancelled.  The D.O. then indicated in his Final Decision that he determined the ticket had indeed not been cancelled and the lack of credibility Kolenc demonstrated in his bald assertion in his reply influenced his decision to proceed with removal.

My question is in this scenario what option does a D.O. have when the employee makes a bald assertion like this (i.e. does not include proof other than his assertion) that the ticket was actually cancelled? I understand the riskless scenario is for the D.O. to inform Kolenc in a “Ward Letter” what he found and give him 10 days to respond.  

How much risk, however, would the D.O. and the Agency assume if they had not called the Police Department but declined to accept the employee’s bald assertion by itself, concluding that Kolenc needed to do more to establish the cancellation than offer his bald assertion in a written reply?

Our FELTG response follows. This questioner already knew the less-dangerous answer, but like most of us, is trying to find a way to be more efficient:

Dear Participant-

Thanks for your question. It’s conceivable that the police made a mistake when checking the employee’s records. It’s possible the employee has evidence that the ticket was cancelled. That’s why due process requires that we notify employees of facts on which we are relying prior to making a decision on a proposed removal, to give them a chance to defend themselves. In my world, an extra five days of pay is well-worth removing this potential due process violation from the case when it goes up on appeal.

When informing the employee of the new information in situations like this, I like to say something like, “In your oral response to the proposed removal, you claimed that the traffic ticket issued to you had been cancelled. Further investigation revealed that the XYZ police department’s records show that the ticket was not cancelled; see attached. You have seven days to respond to this evidence that the ticket was not cancelled and to the fact that you potentially made a significant error in your statement to me in your oral response.” Now the employee is on notice that a) there is evidence that the ticket was not cancelled, and b) that the DO will consider the employee’s lack of truthfulness when making his decision.

The alternative is for the DO to weigh the employee’s unsupported statement that the ticket was cancelled against whatever evidence there is already in the record that it was not cancelled. Perhaps there is no evidence that the ticket was not cancelled. Whatever the evidentiary balance, the supervisor could have said – without contacting the police department to verify one way or the other – “In your oral response, you claim that the traffic ticket was cancelled. However, you presented no evidence supporting your statement. Therefore, I have not considered your unsupported self-serving claim further.”

This latter approach saves you five days of pay. And it has to be based on the premise that the DO has no independent evidence of the non-cancellation of the ticket. However, it runs the risk of a judge disagreeing with the DO as to the evidentiary weight to be given to the employee’s possibly-uncontroverted statement. Separately, there is a possibility that on review, some judge may conclude that the assertion of a claim such as this in a response to a proposed removal requires that the DO investigate the claim prior to making a decision, see Whitmore v. DoL, 680 F.3d 1353 (Fed. Cir. 2012).

Were I making the decision between these two approaches, I would pay the extra salary and notify the employee of the new information. To me, the extra pay is well worth avoiding the possibilities of reversal on appeal by a judge who disagrees with my decision not to investigate and notify, plus it gives me the bonus misconduct to base the removal on, that the employee lied in his oral response.

Due process violations are dangerous. I am scared to death of them.  I take no chances if there is a way I can avoid them. A new notice and response time will cost the agency, but that cost is a price I feel is worth the expense. Hope this helps. [email protected]