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Avoid the Circus: Appropriately Consider Notoriety of the Offense

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By Dan Gephart, January 15, 2025

Quick facts:

  • The eighth Douglas factor is the notoriety of the offense and its impact on the agency’s reputation.
  • Notoriety may be considered as an aggravating factor when an employee’s misconduct has been reported by the media and, sometimes, even if it hasn’t been reported.
  • The seriousness of the misconduct, the employee’s position, and the agency’s mission are all considerations when analyzing the proper disciplinary approach.

P.T. Barnum reportedly said: “There’s no such thing as bad publicity.” Well, it’s a good thing the Greatest Showman never had to appear before the Merit Systems Protection Board or the Federal Circuit.

For misbehaving Feds, there is such a thing as bad publicity for misconduct – and it could lead to a removal penalty. The eighth Douglas Factor – one of 12 to consider when determining the penalty – is the notoriety of the offense and its impact on the agency’s reputation, and it plays an important role in determining nexus when misconduct occurs off-duty.

A few months back, FELTG President Deborah J. Hopkins shared an awful case involving a Federal employee who lured a 13-year-old boy into his house where he licked the child’s bare feet and toes. It’s not good for your agency’s reputation to have its name attached to this kind of behavior in Newsweek magazine. (Deb’s article was also one of our most-read and shared newsletter stories in 2024). The agency removed him based on two specifications of conduct that were unbecoming and relied on the publicity to prove the nexus.

Sometimes, however, the news doesn’t have to make it to a national magazine for its impact on the agency’s reputation to be considered. Reports in a local newspaper, radio station, or over social media will often count, regardless of circulation, listener ratings, or followers. Even internal agency notoriety can be relied upon.

Potential for publicity

In fact, sometimes the misconduct doesn’t need to be reported on at all.

Take the case of Stump v. DoT, 761 F.2d 680 (Fed. Cir. 1985). An air traffic controller was apprehended by the police for possession and use of cocaine while attending a rock concert in Jacksonville, FL. No criminal charges were filed. However, the police reported the incident to the FAA. After an internal investigation, the employee, who denied the charges, was removed. The employee appealed the removal to the MPSB, who upheld it. So, he appealed to the Federal Circuit.

Now, you’re probably asking: Where’s the notoriety here? Was this in the newspaper? Local TV? No, it wasn’t made public through the media. However, that didn’t matter to the Federal Circuit, which found:

Clearly, the public’s awareness of the use of drugs by an air traffic controller, even off-duty use, would detract from its confidence in the agency. While this incident may have received no publicity at the time, disciplinary proceedings are not secret.

Id. at 681-682.

The court is basically saying it is unnecessary to demonstrate the actual occurrence of publicity to establish the connection between off-duty conduct and discipline. The potential for publicity can establish the nexus.

Consider ‘potential’ carefully

In Knowlin v. VA, DC-0752-17-0703-I-1 (MSPB 2023)(NP), a GS-11 employee with the Veterans Benefits Administration was responsible for assisting service members being separated for medical reasons. The agency proposed the appellant’s removal for “disrespectful, insulting, abusive, insolent, or obscene language or conduct to or about … other employees, patients, or visitors.”

On her Douglas Factor worksheet, the proposing official wrote the appellant’s behavior “could have a negative impact” on the agency and those stationed at the appellant’s location. The behavior “could also be chronicled in the local media which would lead to additional scrutiny on the agency.” Id. at 95-97.

The MSPB found this analysis to be “purely speculative.” Id. at ¶11.

Nearly any misconduct by an employee has the potential for notoriety. In the absence of actual notoriety in the media or in the community, there was no reason to think that this counterfactual scenario should have been of special concern to the agency in this case.

Id.

And worse, the Board found the consideration of the notoriety of the offense to be an

an improper ex parte communication. The agency never let the employee know it was considering the aggravating factor until after it imposed the removal.

There’s a lesson: First off, make sure you provide the offending employee with the appropriate due process by including the Douglas factor analysis in the notice of discipline. Know and effectively apply all of the Douglas factors when determining penalty. And take into consideration the unique circumstances of each case, the egregiousness of the offense, and the agency’s mission.

[email protected]

Related training:

And Now a Word With … EEOC GC Karla Gilbride

By Dan Gephart, January 7, 2025

Equal Employment Opportunity Commission General Counsel Karla Gilbride doesn’t work directly in the Federal sector, but when it comes to reasonable accommodation, the areas of concern are strikingly similar.

“Like all employers, the Federal government is run by people who have many demands on their time,” Gilbride said. “As a result, ensuring that disabled employees are included on terms of equality and are properly accommodated can sometimes fall through the cracks.”

“Federal managers and supervisors, as well as human resource professionals, must ensure Federal agencies have clear and effective policies and processes in place to allow employees to make requests for reasonable accommodation and that those requests are considered in a timely and thoughtful manner. Our workers are truly our greatest asset. We can’t do the work of serving the public without first serving our employees by providing accessible and equitable workplaces for everyone.”

As 2024 wound down, we caught up with Gilbride to discuss reasonable accommodation trends, the Pregnant Workers Fairness Act, requests for medical documentation, and more.

DG: It’s been almost a year since you’ve been sworn in. What stands out most about your first year as General Counsel?

KG: I have been incredibly impressed with the commitment and professionalism I see from the career staff at the EEOC. People here are truly dedicated to the mission of the Commission to root out employment discrimination and have devoted themselves to doing that every day. I am grateful to have this opportunity to lead the agency’s litigation program and continue its legacy of preventing and combatting discrimination in our society.

DG: We are in the early days of the Pregnant Workers Fairness Act (PWFA) and there is still some confusion. Tell us how it differs from the ADA.

KG: In FY2024, EEOC filed five lawsuits under the new law, one that we have already settled, and resolved two charges through public conciliations. We are also working hard to get the message out about what this law does.

Importantly, it fills a gap in protections from other Federal anti-discrimination laws, including the ADA and the Pregnancy Discrimination Act (PDA) under Title VII. Under the ADA, a pregnant person must prove their condition rises to the level of a disability to qualify for a reasonable accommodation. The PDA is limited in that it prohibits pregnant workers from being treated worse than other workers similar in their ability or inability to work, which means that in order to bring a claim under that law, a pregnant worker would need to be able to point to a similarly simulated non-pregnant worker who was treated better.

The PWFA, on the other hand, requires certain protections for all pregnant workers, regardless of whether they would qualify as having a disability and regardless of how non-pregnant workers are treated. As an example, the law requires employers to provide reasonable accommodations for the known limitations of the pregnancy, childbirth, or related medical conditions, which includes lactation, of a qualified employee, in addition to prohibiting employers from taking adverse action against workers based on pregnancy, childbirth or related medical conditions.

In addition, the law prohibits an employer from requiring an employee to accept an accommodation other than a reasonable one that has been arrived at through the interactive process, and it also prohibits an employer from requiring an employee to take leave, whether paid or not, if another reasonable accommodation is available. The regulations under the PWFA also establish that some of the most commonsense accommodations, like providing additional restroom breaks, time to eat or drink, the ability to have water readily available, and to stand or sit as needed, will almost always be considered reasonable and should not require medical documentation.

DG: Some of the early cases seem to show employers failing to make some of those simple temporary accommodations. What else are you seeing so far in the early enforcement of PWFA?

KG: Requiring medical documentation, particularly the volume and detail that may be required under the ADA, is one of the most common violations we’re seeing. Many employers are not yet familiar with the PWFA and assume that when someone requests a pregnancy-related accommodation, it is the same as requesting one for a disability, but it is not.

The PWFA does not require an employer to ask for medical documentation, and the employer may only do so when it is reasonable under the circumstances (such as when it’s necessary to determine if an employee qualifies for an accommodation and what kind of accommodation). Another very common mistake, which we often see under the ADA as well, is requiring the employee to go on leave while the employer figures out whether the employee qualifies for an accommodation and if so, identifying the available accommodations. But as explained above, forcing an employee to take leave is expressly prohibited by the PWFA if another reasonable accommodation is available.

One other unique feature of the PWFA, which will be new to employers, is that a reasonable accommodation may be the temporary suspension of an essential job function. While this is not permissible under the ADA, it is explicitly allowed for under the PWFA, as long as the person can perform the essential function again in the near future and their inability to perform it temporarily can be accommodated without undue hardship to the employer.

DG: Technology is evolving quickly, but that doesn’t guarantee accessibility. What should Federal agencies consider when upgrading technology to ensure it is barrier-free?

KG: When considering technology upgrades, it’s critical for Federal agencies to seek out and consider feedback from all employees, including those with disabilities, to ensure that it is truly accessible. This is not only a good practice to ensure that everyone with a stake in the outcome is consulted, but it is also required by Section 508 of the Rehabilitation Act, which mandates equal access and usability for people with disabilities whenever a Federal agency procures or develops electronic and information technology.

Too often, employers do not proactively and thoroughly test whether a new software program they’re considering or other changes they’re making to the workplace will create unintended obstacles for employees with disabilities, but it’s far more expensive to try to correct accessibility problems on the back end after a new product has been purchased or a new system has been rolled out. As with many other issues, an ounce of prevention is worth a pound of cure, not to mention the message of inclusion it sends when the perspectives of disabled employees are affirmatively sought out and valued. Employers will serve their organizations and employees better by thinking about accessibility from the beginning and including it as a factor in RFPs and other procurement processes. There are also many organizations, like state vocational rehab agencies and the Job Accommodation Network (JAN), that employers, including Federal agencies, can consult for free about how to make new technology accessible to all workers.

DG: When it comes to ADA, what do employers/supervisors most often fail to understand?

KG: We see some of the same issues that I mentioned earlier with regard to the PWFA, particularly in the areas of requiring unnecessary medical documentation and immediately placing people on leave when they request another accommodation.

Only medical documentation which is absolutely necessary for an employer to determine if an employee is entitled to a reasonable accommodation, and what kind of accommodation, is permissible. What is necessary may be quite limited, depending on the disability.

In most cases, this will be only a brief note from a medical professional stating the employee’s disability, which may include identifying a major life activity that is substantially limited, if that is not already known or obvious; the functional limitations of the employee relevant to the requirements of their job; and possibly a specific requested accommodation.

We also see employers placing disabled folks on leave for long periods of time while they consider reasonable accommodation options but then extending indefinitely those leaves, which are usually unpaid. In many of those instances, a reasonable accommodation was readily apparent and available. One more common mistake we see employers make is requiring a doctor’s note clearing the employee to return “without restrictions” from a medical leave of absence even if the person can still do the job with some restrictions through a reasonable accommodation. Those sorts of one-size-fits-all, inflexible policies violate both the text and the spirit of the ADA, which is all about recognizing that not everyone will do the same job exactly the same way and that variations in the human condition in terms of ability should be embraced and accommodated, not dismissed as disqualifying, because they mean that more of us will be able to contribute our talents and perspectives in the workplace.

DG: If there was one thing you could tell Federal supervisors that you think would make the workplace more inclusive, what is it? 

KG: Making the workplace more inclusive is incumbent upon all employers, whether they are Federal or private. The same advice would apply to all employers, and that is to see people for who they are as individuals and what they can each bring to the table.

Every employee is unique and brings their own perspective, experience, and skills. Take advantage of those differences by welcoming and valuing them and figure out how they can be used to the benefit of the work you do. Spend the time to find out what each employee is good at and capitalize on that as much as possible, and if you recognize a barrier that may keep some qualified people from entering your workplace or prevent those who are already there from reaching their full potential, think creatively about what you can do to remove that barrier. [email protected]

Related training:

How Long Has This Unapproved Leave Been Goin’ On?

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By Dan Gephart, December 11, 2024

Quick facts:

  • When disciplining for AWOL, you have to prove not only the alleged facts but also the charge elements.
  • AWOL of more than five days typically justifies termination.
  • Older cases reveal that, depending on some factors, even fewer than five days could justify termination.

Over the Thanksgiving break, I found myself glued to HBO’s “Yacht Rock: A DOCKumentary.” For the uninitiated, yacht rock is a smooth and melodic, California-based blend of jazz, rhythm and blues, and soft rock that dominated radio airwaves between the mid-70s and mid-80s. Think “Ride Like the Wind” by Christopher Cross, “Black Friday” by Steely Dan, “What a Fool Believes” by the Doobie Brothers, or, basically, any other song with the voice of Michael McDonald.

The documentary was fun to watch, but then I started hearing these wispy songs wherever I went. I couldn’t escape them. This morning, I got in the car, turned on the radio, and was hit with the should-be-long-forgotten classic “How Long Has This Been Going On” by Ace. That yacht rock earworm has burrowed way deep into my temporal lobe.

It’s a fitting song, after all, since I’m writing today about Absence Without Leave, a disciplinary charge more affectionately known as AWOL. How many hours of AWOL justifies termination? In general, the answer is usually AWOL of greater than five days

Example 1: Young v. USPS, 14 MSPR 549 (MSPB 1983). A USPS mail handler was removed for fraudulent use of sick leave requests and AWOL. The agency charged the employee with 19 instances of AWOL, totaling 122 hours. In the initial decision, the AJ found only six instances, totaling 40.75 hours were supported by preponderant evidence. However, the AJ noted that all of the AWOL took place in a short period of time between June 4 and July 19 of the same year.

Although the mail handler’s performance had been fully satisfactory for 17 years, it was outweighed by his more recent record of unreliable attendance and its impact on the agency’s ability to accomplish its mission. The removal was upheld.

Could removal ever be deemed reasonable for AWOL of a smaller number?

Absolutely. Let’s try 17 AWOL hours, the number you’ll find in Banks v. DLA, 29 MSPR 436 (MSPB 1985). After a long stretch of unauthorized absence, an employee stated, through a union representative, that he was being treated for depression and work inhibition. The agency initially sought to remove the employee for AWOL but then made an alternative offer: We’ll put the proposed removal into abeyance and place you in a one-year probationary period. However, the employee refused to sign the paperwork.

Subsequently, the employee was AWOL for a combined 17 hours over a one-week period, and it was solely those absences that formed the basis of the agency’s removal action.

The MSPB ruled the removal was “reasonable under the circumstances of this case.”  The Board pointed out the absences came shortly after the employee was warned about the previous absences.

How about eight hours or one day?

In Moxley v. VA, 36 MSPR 345 (MSPB 1988), a nursing assistant was placed on a sick leave restriction, requiring her to obtain medical certification to verify any use of sick leave. She requested sick leave for eight hours for later that month. The agency gave her five days to submit a medical certification of the need for sick leave. She didn’t, and the agency charged her AWOL when she failed to show up on the requested day.

The MSPB found the agency’s penalty of removal was reasonable due to several factors,  including the fact she had previously been suspended twice for similar AWOL offenses. [A quick note here: FELTG considers suspension an irrational option with an AWOL charge. Better to consider a reprimand in lieu of suspension.]

To recap: AWOL is a leave status – not automatically a disciplinary action. But AWOL is also a disciplinary charge. In general, removal is appropriate for AWOL of longer than five days. However, it may be appropriate for shorter stretches, such as 17 or eight hours, although it’ll depend on other factors. Whatever the length of absence, however, be sure to consider the following elements when disciplining for AWOL:

  • The employee was absent without authorization.
  • If leave was requested, denial was reasonable. [email protected]

Related training:

And Now a Word With … MSPB Member Henry Kerner

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By Dan Gephart, December 3, 2024

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[email protected]

Related training:

And Now a Word With … FLRA Member Anne Wagner

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By Dan Gephart, November 19, 2024

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Related training:

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

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By Dan Gephart, November 13, 2024

Quick facts:

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

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

Until they let us down a second time.

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

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

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

Unless they let you down again.

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

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

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

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

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

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

Related training:

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

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By Dan Gephart, October 15, 2024

Quick facts:

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

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

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

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

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

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

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

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

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

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

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

The complainant alleged:

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

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

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

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

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

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

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By Dan Gephart, September 17, 2024

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[email protected]

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ALJ Rules Medical Inability to Perform Removal Was Fitting

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By Dan Gephart, September 10, 2024

Quick facts:

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

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

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

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

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

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

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

The appellant also requested telework or medical retirement as accommodations.

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

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

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

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

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

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

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

The administrative law judge ruled:

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

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

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And Now a Word With … Mika Cross

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By Dan Gephart, September 3, 2024

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

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

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

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

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

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

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

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

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

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

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

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

DG: How do you measure it?

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

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

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

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

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

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

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

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

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

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

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

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

DG: Are there solutions for addressing those equity issues?

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

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

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

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

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

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

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

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

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

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

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

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

[email protected]

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