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Could Using Someone’s Incorrect Job Title Constitute Harassment or Unlawful Discrimination?

March 11, 2025

As is almost always the case, the answer is “it depends,” and the facts matter – but it certainly might. A recent EEOC decision considered whether the complainant was subjected to a hostile work environment based on race (white), national origin (Hispanic, Latina), and sex (female) when the agency’s Chief of Staff referred to her, a GS-14 Program Analyst, as “[Supervisor’s] helper” in a meeting with colleagues in the Office of Human Resources Management. Kenyatta S. v. GSA, EEOC App. No. 2024003194 (Sept. 30, 2024).

The complainant attempted to immediately address the situation with the Chief of Staff, but he “brushed it off and continued the meeting,” so after the meeting ended, she contacted him again and explained that she was “offended by the way he characterized her role and working relationship” to the supervisor. Id. at 3. According to the complainant, the Chief of Staff apologized but immediately started asking questions about the meeting, and while the Chief of Staff also wrote an apology, he “did not take responsibility for his actions and failed to acknowledge the mental anguish she experienced as a result of the comment.” Id. at 4. As a result, the complainant resigned from her position and filed an EEO complaint.

The agency dismissed the complaint for failure to state a claim, but on appeal EEOC reversed the agency’s dismissal and remanded the case. Ordinarily events that occur infrequently and are not severe do not state a claim, but EEOC found this case to be more in line with case law that has found “a limited number of highly offensive slurs or comments may in fact state a claim or support a finding of discrimination…” Brooks v. Navy, EEOC Req. No. 05950484 (Jun. 25, 1996). Id. at 10. The Commission also referenced case law that found dropping a person’s title or name when such conduct was intended to demean and challenge their legitimacy or presence within a group constituted harassment. Id. at 13. (emphasis added)

Here, the Commission held that considering the intersectionality of the complainant’s race, sex and national origin, combined with the social context, the Chief of Staff’s conduct toward the complainant was severe enough to state a claim because he “effectively challenged the legitimacy of Complainant’s role within the Agency and called her competence as a GS-14 level employee into question. Moreover, the term ‘helper’ connotates a cultural stereotype specific to Hispanic/Latina women. Complainant was humiliated and distressed. She also feared for her professional reputation.” Id. at 14.

The EEOC remanded the case to be processed as a mixed case because the complainant alleged a constructive discharge in addition to a hostile work environment. [email protected]

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

Can an Agency Order Employees to Return to the Office if Their Telework is an Accommodation?

February 25, 2025

Dear FELTG: Our agency has issued return to in-person work orders which require all employees with telework agreements to report onsite 5 days per week. Does this include people on telework as a reasonable accommodation?

I sure hope not.

Does an agency have the authority to cancel telework for its employees? Yes. Telework is a privilege, for most employees, and under the law (5 USC 302) and agency policies, management can require telework-eligible employees to report onsite. And they can remove employees who refuse. See Wong v. Commerce, DC-0752-17-0298-I-2 (Dec. 8, 2023)(NP).

BUT…sometimes telework is an entitlement. And telework as disability accommodation is one of the areas where a qualified employee may have just such an entitlement. Agencies violate the Rehabilitation Act if they remove a qualified employee’s existing accommodation without regard to the employee’s situation.

There are certain circumstances that give agencies the right to revisit an existing accommodation. But a unilateral cancellation of all telework, including telework as RA, is a losing battle for the agency, and may cause irreparable harm to the employee in the process.

Here are just a couple of cases where the agency violated the law when it revoked an existing telework accommodation:

  • Because she had irritable bowel syndrome, the complainant was on 100 percent telework with a flexible schedule. The accommodation had been in place for several years and she had been successfully performing her duties the entire time. A new supervisor took over the department and cancelled all existing telework agreements, including the complainant’s. The complainant notified the supervisor she needed telework to accommodate her disability and requested the RA be granted back to her, but the supervisor refused, claiming the complainant’s job was not telework eligible. Sandra A. v. Navy, EEOC Appeal No. 2021002132 (Sept. 16, 2021), request for recon. denied, EEOC Request No. 202200276 (Mar. 7, 2022).
  • The employee was on a schedule allowing telework Mondays, Tuesday, and Wednesdays, and reported onsite on Thursdays, because of medical restrictions. The agency changed the employee’s telework schedule despite her successful performance and the fact that she provided medical documentation that the schedule she had was the only accommodation that would work. Cheryl L. v. Treasury, EEOC Appeal No. 2021001710 (Sept. 26, 2022).

Telework as an accommodation isn’t going anywhere any time soon, so if you need training for your agency please let us know how we can help. A training class is a lot less expensive than losing a case before the EEOC. [email protected]

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

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Ask FELTG: Does an Employee Have the Right to an Attorney During an OIG Investigation?

The following question came to us via Ask FELTG:

Is a Federal employee entitled to have an attorney represent them during an Office of Inspector General (OIG) investigation?

Thanks for the question. The answer – barring the existence of a union contract, which by law allows a covered employee to have representation during a Weingarten meeting – is no. Foundational MSPB case law tells us that an employee’s right to counsel is limited to criminal proceedings, and a Federal employee has no right to counsel during an administrative investigative interview unless:

(1)    The investigation may result in criminal prosecution, and

(2)    The interrogation takes place while the employee is in custody.

Chisolm v. USPS, 7 M.S.P.R. 116, 120 (1981); see also Ashford v. DOJ, 6 M.S.P.R. 458 (1981); Torain v. Smithsonian, 465 F. App’x 945, 948 (Fed. Cir. 2012).

So if the OIG investigation is not about a criminal matter and the employee is not in custody, the agency does not have to grant the employee’s request to have an attorney present.

A recent MSPB case looked at this very issue. Tate v. DOD, SF-0752-19-0692-I-1 (Oct. 3, 2024)(NP). The appellant, who was suspended for 60 days after the OIG found time and attendance violations, argued that he was entitled to be represented by an attorney during the OIG investigation, and because he was denied a representative, the suspension should be reversed. However, he had signed a form prior to the OIG interview, which specifically stated that his answers could be used “in the course of civil or administrative proceedings” but could not be used in a criminal proceeding unless he knowingly provided false information. Id. at 2.

In addition, the appellant was not in custody during the interview. According to the Board:

The appellant has not shown that he was compelled to appear before the OIG Special Agent. That he could have faced an agency disciplinary action for refusing to cooperate with the investigation does not alter that fact. See Weston v. Department of Housing & Urban Development, 724 F.2d 943, 947-48 (Fed. Cir. 1983) (finding that an employee can be removed for refusing to cooperate in an agency investigation if, among other things, the employee is informed that information obtained from the employee will not be used in a criminal proceeding against him) … Nor has the appellant cited to an agency regulation or policy or an applicable collective bargaining agreement provision setting forth a right to counsel in an OIG investigative interview. Thus, we find that the appellant has not shown that he was improperly denied the right to representation by counsel during the OIG investigation.

Id. at 3.

There are lots of rights and responsibilities and dos and don’ts when it comes to agency administrative investigations. Do you know which laws, regulations, and rules apply?

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

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Ask FELTG: Can an Agency Charge AWOL for Failure to Report for Overtime?

January 21, 2025

Hello, FELTG! 

Can an agency charge an employee AWOL when they fail to report for overtime? There is a “healthy” debate within my division on this. Most of my specialists are saying because the employee doesn’t have the opportunity to request leave, you can’t charge them AWOL. My rebuttal to that is, it’s outside of the administrative workweek so it’s moot. Could you please help end this debate? I know of no rule that an agency cannot charge an employee AWOL unless they can request annual leave. Thank you!

Thanks for the question. Fortunately, there is foundational case law on this, which should help settle any “healthy” debate in your office. Check out Abrams v. Navy, 22 M.S.P.R. 480 (1984). It’s an interesting case that involved four charges, the most egregious related to the appellant shooting – with a gun, while off duty – and wounding another person. The appellant was convicted on five criminal charges related to the shooting, but the Board found the agency did not prove nexus, because the appellant proved the shooting had no adverse effect on the efficiency of the service. (Yikes. Maybe the agency assumed the conduct was so egregious there was a presumption of nexus, but failed to realize that it’s a rebuttable presumption?)

So then, what are we left with? Three additional charges supported the removal:

1) A second offense of being away from his assigned job during working hours without proper permission (one day);

2) An unexcused absence from assigned overtime (one day); and

3) Excessive unauthorized absence from July 28, 1980 through October 1, 1980.

Id. at 482-483.

Your question really goes to charge 2, where the appellant was scheduled for overtime and did not report. According to the Board:

[T]he agency established that the overtime work scheduled for appellant on June 1 was “critically important” to the shipyard’s mission of maintaining and repairing naval vessels. Appellant admitted that he was aware that his scheduled overtime work was of critical importance. Under these circumstances, the Board finds that appellant failed to provide satisfactory documentation for his unscheduled absence on June 1 and, consequently, that the agency did not abuse its discretion in denying appellant LWOP and in charging him with AWOL… (internal citations omitted)

Id. at 485.

There you have it. An agency may charge AWOL (or, alternatively, unexcused absence from assigned overtime) when an employee does not report for scheduled overtime. In the Douglas factors assessment, be sure to emphasize the harm or potential for harm due to the employee’s absence. [email protected]

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

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December 11, 2024

Thank you for your question.

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

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

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

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

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

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

Have a question? Ask FELTG.

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

Ask FELTG: Is Driving a Car with a Political Bumper Sticker a Hatch Act Violation?

October 22, 2024

There are 14 days left until the Presidential election. As we tick closer to Election Day, we continue to receive Hatch Act-related questions via our Ask FELTG feature. The most recent question:

Is there an issue if an employee’s bumper sticker, on a personal vehicle, said “Let’s go Brandon” and the employee drove to and from work in uniform?

The question was a follow-up to our recent interview with the Office of Special Counsel’s Hatch Act Unit Chief Ana Galindo-Marrone. Training Director Dan Gephart asked Galindo-Marrone about political bumper stickers on cars in the agency’s parking lot. She replied:

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

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

“Let’s go Brandon” is a partisan bumper sticker and it’s, apparently, the only one on this Fed’s car. So, the question gets to whether you can drive the car with the bumper sticker while wearing your agency’s uniform.

We followed back up with the OSC and received this reply:

The Hatch Act would not prohibit a Federal employee who is wearing an official uniform from driving their personal vehicle that displays partisan bumper stickers, provided the employee is not using the vehicle for official purposes.

Have a question? Ask FELTG.

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

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Ask FELTG: Can Witness Receive Anonymity Due to Abusive Ex-partner?

October 8, 2024

We received the following via Ask FELTG:

Dear FELTG: If our agency has an employee who is a witness in an MSPB case but needs privacy because of an abusive ex-partner who no longer knows where our employee lives or works, would the MSPB consider granting the witness anonymity in the case?

Thanks for the question. Fortunately, there is clear Board guidance on this topic in the MSPB Judges’ Handbook (2019), Chapter 2, Section 5(e):

Increasingly, the Board affords anonymity to nonparties to appeals, including witnesses … Such persons are often referred to by their initials, their job titles, or as Witness 1, 2, etc., or by some other designation that does not make their name apparent to a reader unfamiliar with the facts of the case. … While the Board does not have case law or a specific policy on this matter, AJs may, at the request of a person involved in a case that is before them, or on their own motion if they believe it appropriate, keep confidential the identity of such individuals by referring to them in such a way in the initial decision.

Did you know that decades of research show that nearly one in four women and one in nine men experience severe intimate partner physical violence, sexual violence, or stalking – and nearly three-quarters of those victims are harassed by their abuser at work? Domestic violence against Federal employees is an ever-present concern, so much so that the Biden Administration recently issued guidance on providing safe leave to employees who are experiencing a dangerous or abusive situation at home.

In addition to safe leave, anonymity is one thing an agency can offer an employee as a protection against potential domestic violence entering the workplace – for example, removing the employee’s name and contact information from the agency website.

Sometimes those of us in Federal employment law have a hard time thinking outside of the legal ramifications of workplace scenarios, but at FELTG our aim is to look at workplace issues holistically. On October 23, our resident Licensed Clinical Social Worker and instructor Shana Palmieri intends to help agency attorneys, L/ER Specialists, EEO Specialists, managers and supervisors, and union officials recognize potential signs of domestic violence in the workforce (including from employees who are teleworking), and learn how to communicate concerns with employees in respectful and compassionate way. It’s too important a session to miss.

Have a question? Ask FELTG.

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

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Ask FELTG: Can Probationary Employees Ever Have MSPB Appeal Rights?

October 1, 2024

Since we started answering your questions through Ask FELTG, we’ve received dozens on the topic of probationary periods. And that includes today’s question:

I’m confused. How is it possible for an employee who is separated during their probationary period to have appeal rights? 

And the FELTG answer: Probationers are not yet “employees” under 5 USC § 7511(a)(1) and as such they do not have MSPB appeal rights over their separations. There are, however, three exceptions:

  1. The separation was based on pre-appointment reasons,
  2. The separation was because of marital status, or
  3. The separation was for partisan political reasons.

See 5 CFR §§ 315.804-805.

In addition, there are some positions in the Federal government that require a probationary or trial period, regardless of the employee’s employment history with the government. For example, Federal employees hired under a Direct Hire Authority must serve a probationary period even if they served one in a previous position. However, these employees will retain MSPB appeal rights if they have current continuous employment, excluding service in temporary positions with a duration of two years or less, of:

  • One year in the competitive service, or
  • Two years in the excepted service, or
  • For veterans: one year in either service.

See Van Wersch v. HHS, 197 F.3d 1144 (Fed. Cir. 1999), Claiborne v. VA, 2012 MSPB 101.

Have a question? Ask FELTG.

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

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Ask FELTG: Is it Harassment if an Employee Intentionally Mispronounces a Coworker’s Name?

July 30, 2024

The answer to this question we received from a FELTG customer? It sure could be.

A recent case, Assunta V. v. DHS, EEOC App. No. 2021003725 (May 8, 2023), involved an employee who filed a hostile work environment harassment complaint (based on race, national origin, and sex) on that issue, and more.

Here are a few of her allegations:

  • Her first-line supervisor, the Environmental Manager (the EM), “intentionally mispronounced her name when not in the presence of management – to highlight that she had a ‘non-Western name.’” Id. at 10.
  • The EM asked the complainant, “When is the next time you are going home? You know, home, across the ocean.” Id. at 1-2.
  • In a number of instances related to the complainant’s maternity leave and her use of the Mother’s Room to express breastmilk, the EM would refer to the complainant as “mom” rather than use her actual name. Id. at 8.
  • The EM made inappropriate racial remarks to the complainant in regards to an Asian American colleague’s name, using the terms “ching chong,” “ding dong,” and “ling,” instead of the colleague’s actual name. Id. at 2.

These claims, in addition to several other allegations of hostile work environment harassment related to race, national origin, and sex, were substantiated by the evidence, according to EEOC:

The record indicates that the EM exhibited a pattern of disregarding the proper pronunciation of Complainant’s name as well as Complainant’s co-worker’s name, both of whom were Asian American. The record further reflects that the EM exhibited a pattern of questioning whether the United States constituted as home for employees like Complainant who were born abroad but were also United States citizens … Additionally, the record reflects that the EM had difficulty communicating with employees who had a different racial and national origin, which resulted in Complainant being subjected to inappropriate comments based on her race and national origin over a period of time. We find these incidents were sufficiently severe and pervasive enough to constitute discriminatory harassment based on race, national origin and/or sex.

Id. at 11-12.

EEOC found the agency liable because it did not take prompt, effective corrective action. While a Supervisory Manager instructed the EM about the appropriate pronunciation of the complainant’s name, issued a non-disciplinary counseling, and told the EM to stop referring to the complainant as “mom,” EM’s conduct continued, thus proving the attempted corrective action was not effective.

Intentional mispronunciation of a coworker’s name is exactly the type of conduct that can lead to a hostile work environment, a topic we’ll be discussing in depth next week (August 7) during the two-hour training event Navigating Complex Hostile Work Environment Harassment Cases. So be sure to join us. [email protected]

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Ask FELTG: Can Agency Consider 10-year-old Suspension as Prior Discipline?

June 25, 2024

We recently received the following question via Ask FELTG.

Dear FELTG: An attorney in my agency’s legal office told me I am not allowed to rely on an employee’s past suspension as prior discipline in a Douglas factors analysis if the suspension is more than 10 years old. Is that true?

Thanks for the question. While there is an old MSPB case that discusses how reliance on a suspension that occurred more than 10 years before was too far removed in time to be an aggravating factor, that case does NOT say that any discipline more than 10 years old can never be relied upon. Kehrier v. DOJ, 27 M.S.P.R. 477 (1985). We’ve come across more than one interpretation of Kehrier over the years. So here are some thoughts from the FELTG perspective.

The Board has never made a blanket prohibition on how far back in time an agency can consider discipline.

In Kehrier, the judge (known back then as a “presiding official”) found that a suspension that occurred 10 years prior “was too remote in time to be of significance with respect to the present charges” against the appellant. Kehrier, 27 M.S.P.R. at 480. But, in reviewing the initial decision the Board pointed out the lack of consideration of that suspension had no bearing on the outcome of the case given the seriousness of the current misconduct. Id.

In other words, in Kehrier, the Board never actually weighed in on whether going back beyond 10 years was appropriate or too far removed in time as a general principle. And in the four decades since the decision was issued, the Board has never used Kehrier as authority to find error in an agency’s considering a suspension older than 10 years.

In fact, the Board has explicitly stated, as recently as March of this year, that “none of the case law seems to bar consideration of prior discipline due merely to passage of time, [but] we find that passage of time may go to the weight that the prior discipline should be accorded, along with the severity of the prior discipline and whether the current disciplinary action is being taken for similar reasons.” Ybarra v. DOJ, CH-0752-17-0422-I-2 (Mar. 21, 2024)(NP).

Ybarra, which we wrote about previously in this newsletter, involved the 2017 removal of an FBI agent for unprofessional off-duty conduct after he made “persistent and inappropriate advances” toward two underage females. Id. at 2. In its decision, the agency relied on a 45-day suspension the appellant had served 14 years prior for inappropriate sexual conduct toward female colleagues. The prior suspension also came with an “explicit warning that it was his ‘second and final notice that offensive interpersonal interactions will not be tolerated…’” Id. at 3. Because of the warning, and because the conduct 14 years prior was similar to the conduct in the current case, “notwithstanding the significant passage of time, we agree with the administrative judge that the agency did not abuse its discretion in giving the appellant’s 2003 suspension significant weight as an aggravating factor.” Id.

The more recent (and similar) the prior discipline, the more aggravating.

The Board also identified a few cases where the recency of past suspensions was an aggravating factor:

Ybarra at 3.

An agency policy or CBA might set time limits on prior discipline.

While rare, if an agency policy or union contract defines a reckoning period for past discipline, the Board will defer to the policy or contract and would find it improper to rely on expired discipline for Douglas factor 3. See Lewis v. USAF, 51 M.S.P.R. 475, 485 (1991). However, expired discipline may still be used under Douglas factor 9, clarity of notice.

Douglas requires individualized considerations.

In a case of discipline: “The fundamental requirement is that agencies exercise responsible judgment in each case, based on rather specific, individual considerations, rather than acting automatically on the basis of generalizations unrelated to the individual situation.” Douglas v. VA, 5 M.S.P.R. 280, 303 (1981)(bold added). So, applying the strict penalty assessment facts of one particular case to every future agency disciplinary action, absent an express requirement by the Board to do so, is too restrictive and may actually work against the purpose of Douglas to help an agency make individual penalty considerations.

TL; DR: There is no prohibition against relying on suspensions more than 10 years old as past discipline under Douglas factor 3. However, the further back in time the suspension was served, the less weight it holds as an aggravating factor.

Join FELTG for Advanced MSPB Law: Navigating Complex Issues July 9-11.

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