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Indefinite Suspensions: When an Agency Suspends Access to Classified Information

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By Deborah J. Hopkins, September 24, 2024

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What can trigger the end of the indefinite suspension?

There are three options:

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

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

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

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

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

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

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

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

[email protected]

Related training:

Law Enforcement Officer Bites His Wife During an ‘Altercation’

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By Deborah J. Hopkins, September 10, 2024

Quick facts:

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

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

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

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

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

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

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

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

 

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

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

Id.

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

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

Related training:

Agency Blatantly Fails to Accommodate Breastfeeding Employee

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By Deborah J. Hopkins, August 19, 2024

Quick facts:

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

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

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

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

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

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

So far, so good.

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

A few other relevant details:

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

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

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

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

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

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

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

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

Related training:

A Successful Performance-Based Removal Under Chapter 75

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By Deborah J. Hopkins, August 12, 2024

Quick facts:  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[email protected]

Lack of Date Specificity in Proposal Not Always Due Process Violation

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By Deborah J. Hopkins, July 17, 2024

Quick facts:

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

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

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

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

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

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

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

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

Lewis at 6.

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

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

Id.

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

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

[email protected]

Training on this Topic:

Yet Another Improper (and Appalling) Denial of Telework as Reasonable Accommodation

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By Deborah J. Hopkins, July 9, 2024

Quick facts:

  • The complainant had a painful skin condition that caused unpredictable flare-ups and fluid seepage from her lesions.
  • She requested full-time telework as an accommodation and provided medical documentation of her limitations.
  • The EEOC found the agency’s offer of two days of telework and a modified work schedule were not effective, and that providing full-time telework would not be an undue hardship.

If it’s a day that ends in “y”, it’s a day we see yet ANOTHER case involving a denial of telework as a disability accommodation, when there is a mountain of evidence (and supporting medical documentation) that telework is the only effective accommodation: Tania O. v. Army, EEOC App. No. Appeal No. 2022001333 (Jan. 31, 2023).

Why are some supervisors still opposed to telework – especially supervisors who know the employee performed acceptably on 100% telework for 10-plus months during the initial COVID lockdowns?

Consider the Tania O. case, cited above, where the complainant was diagnosed with hidradenitis suppurativa (HS), a skin condition that causes painful lumps to form underneath the skin, which can either break open and seep fluid, or form tunnels beneath the skin surface.

According to the complainant’s testimony, “I get the lumps under my armpits, under my breast, on my buttocks which prevents me from sitting, but I am mostly affected in my groin area, which is painful for me to walk because any type of clothes that can rub against it begins to irritate the lumps…They break open and leak all over my clothes…which causes me the need to change my clothes or pad my clothes.” Id. at 5.

The complainant requested a reasonable accommodation that would allow her to have situational telework in the event of an HS flare-up. The supervisor requested medical documentation, and the complainant complied, providing information from her physician which identified that:

  • The complainant’s case of HS caused her to develop painful nodules and plaques (boils) that could be debilitating.
  • Active flaring lesions can create a significant amount of drainage.
  • Flare-ups can fluctuate in severity but can happen daily in patients during some phases of the disease.
  • It can take several days for lesions to improve.
  • Lesions in the groin/buttocks area make prolonged sitting, standing, or walking very difficult.
  • Certain clothes, including work attire, can be difficult to wear during flare-ups.
  • The leaking drainage has a strong odor, and also shows up visibly on clothing, which causes high levels of embarrassment in a public setting.
  • Using public bathrooms with open/draining sores in the groin/buttocks area is very uncomfortable.
  • Working from home can be very helpful during flare-ups to allow for increased comfort and reduced stress and embarrassment.

How’s that for specific?

Even still, the complainant’s supervisor did not approve her telework request, but suggested alternate accommodations — a sit-to-stand desk and a private office located near several restrooms. The complainant accepted the alternative accommodations but indicated that she disagreed with them and initiated the agency’s informal dispute resolution process. Id. at 6.

The complainant then renewed her telework request and the agency denied it but offered additional accommodations — toilet seat covers and an alternate work schedule, with hours from 7 a.m. to 4:30 p.m. The complainant once again disagreed with the offered accommodations, indicating they would not be effective, and informed the agency she was initiating an EEO complaint. The agency responded by issuing a memo informing the complainant that she could request FMLA leave to deal with her flare-ups, and that she could telework on Tuesdays and Thursdays.

In emoji speak, 🤦🏻‍♀️ and 😡 come to mind.

The complainant accepted the newest accommodations (after all, some telework is better than no telework, right?) but informed the agency shortly thereafter that the two days of telework were not working for her because her flare-ups were not limited to Tuesdays and Thursdays. Understandably frustrated, at one point the complainant asked her supervisor, “do you want me to come to work with no underwear and bra, and the boil bursts drains onto my clothing and chair and causes a [foul] odor.” Id.

The Commission sided with the complainant and found the agency violated the law because it failed to provide an effective accommodation:

None of the alternative accommodations the Agency provided [Complainant] alleviated her need to abstain from sitting, walking, and wearing clothing that aggravated her painful lesions during unpredictable flare-ups of her condition. The only accommodation the Agency provided that even remotely addressed her needs – the fixed telework days – was also ineffective because [Complainant’s] condition did not only flare on Tuesdays and Thursdays. Significantly and critically, neither [Complainant] nor her doctor can predict those days when her condition may flare.

Id. at 3.

In addition, the agency never demonstrated (or even contended) that providing the complainant with telework during her flare-ups would cause an undue hardship. Aiding the complainant’s case was her experience on 100 percent telework for 10 months during the COVID pandemic while maintaining successful performance.

Fellow humans, if you’re reading this, you probably agree with me that being stingy on telework when it would be an effective accommodation is an absolutely terrible idea. But you have my permission – nay, my pleading request – to pass this article along to anyone you think should receive the message. [email protected]

Training on This Topic

As Wiley Always Said, ‘Nexus is NOT a Hair Product’

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By Deborah J. Hopkins, June 10, 2024

I used this article’s headline in a recent training class on Advanced MSPB Law: Navigating Complex Issues (next held July 9-11). It was a favorite used by FELTG Founder Bill Wiley when explaining the nexus requirement in agency cases involving discipline for employee misconduct.

An agency must establish three requirements when defending an adverse action against an employee under 5 U.S.C. chapter 75:

  • It must prove by a preponderance of the evidence that the conduct occurred as charged;
  • It must establish a nexus between that conduct and the efficiency of the service; and
  • It must demonstrate that the penalty imposed is reasonable.

5 U.S.C. §§ 7513(a), 7701(c)(1)(B); 5 C.F.R. 752.403; Pope v. USPS, 114 F.3d 1144, 1147 (Fed. Cir. 1997).

A nexus, generally defined, is a link or connection between the misconduct and the employee’s job or the workplace; as seen under the second requirement above, the concept of nexus is often referred to as the “efficiency of the service” standard.

As we’ve discussed in a previous article, the MSPB generally recognizes three independent means by which an agency can show a nexus when the agency wants to impose discipline, particularly for off-duty misconduct:

  • A rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct (for example, cases involving harm against children);
  • The misconduct affects the employee’s or co-workers’ job performance, or management’s trust and confidence in the employee’s job performance (for example, management has lost trust in the employee’s ability to make good decisions because the employee was arrested for driving under the influence of alcohol); or
  • The misconduct interfered with or adversely affected the agency’s mission (for example, an employee of an agency’s morale, welfare and recreation division has an affair with an officer’s wife while the officer is deployed overseas).

A lead case on nexus for off-duty conduct, that every agency rep and union official should read, is Kruger v. DOJ, 32 M.S.P.R. 71 (Jan. 8, 1987). The case involved three Federal Bureau of Prisons employees who were reported to be smoking marijuana outside a local bar. After the agency’s investigation confirmed the events as alleged, the employees were removed on charges of “possession and use of marijuana on July 10, 1985, outside a local public tavern while off duty.” Id. at 74.

The agency justified the removal because, in part “as correctional officers, appellants have close contact with inmates and they are responsible for protecting property and inmate safety, enforcing security policies, regulations, and laws (including the laws proscribing narcotics and contraband), and assisting with inmate rehabilitation.” Id. at 74-75.

On nexus, DOJ showed that the appellants’ use of marijuana impacted agency mission because it was “antithetical to the agency’s law enforcement and rehabilitative programs that they are responsible for monitoring.” Id. The agency also showed that the notoriety of the conduct by the public “would impair the efficiency of the agency by undermining public confidence in it, thereby making it harder for the agency’s other workers to perform their jobs effectively.” Id.

The Board found the agency showed by preponderant evidence there was a nexus linking the off-duty misconduct with the efficiency of the service. It also, however, found removal was unreasonable and relied on the following Douglas factors in justifying a mitigation to a 60-day suspension:

  • None of the appellants had any prior discipline.
  • Length of service: Kruger had approximately 12 years of service and the other two appellants each had seven years.
  • The appellants all had either fully successful or outstanding performance.
  • The appellants’ truthful admissions of their misconduct on initial inquiry by the agency “indicate that they will not subsequently act in a dishonest or otherwise improper manner with the agency.” at 77.
  • The public was not aware of the events since no criminal charges were filed.

Shocking, perhaps, considering this was the 1980s and marijuana laws were quite different (and much stricter) back then. Check out the case for yourself and let us know if you have any thoughts or questions. We always enjoy getting messages from you. [email protected]

 

A Supervisor’s Negative Comments About EEO = Reprisal EVERY TIME

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By Deborah J. Hopkins, June 10, 2024

It is absolutely critical for Federal supervisors and managers to understand that engaging in protected EEO activity is a right for all Federal employees, regardless of the outcome of such activity. Throughout my years in the classroom, I’ve come across numerous supervisors who believe that if an EEO complaint is found to have no merit, then the employee has not engaged in protected activity. This couldn’t be further from the truth.

The Equal Employment Opportunity Commission for decades has held that comments which, on their face, discourage an employee from participating in the EEO complaint process can have a chilling effect on others, and as such nearly always amount to reprisal. See, e.g., Binseel v. Army, EEOC Req. No. 05970584 (Oct. 8, 1998), where the supervisor told the complainant that filing an EEO complaint was not the right approach to try to get a promotion.

Below are two more recent examples where the EEOC found reprisal because of a supervisor’s words about the EEO process:

Carlton T. v. USPS, EEOC App. No. 2019005495 (Nov. 16, 2020)

EEOC found a supervisor’s criticism of the manner in which the complainant filed EEO complaints constituted reprisal. Examples of the supervisor’s criticism included:

  • Telling the complainant he [the supervisor] thought it was “pretty sad” the complainant made up stories about people, and that this was why the complainant’s EEO complaints “never went anywhere, as nobody believed” him. at 9.
  • Telling the complainant, “you think you’re a specialist[,] but they reject all your [EEO complaints] because they’re all misspelled and have a lot of run-on sentences.”
  • In response to the complainant’s offer to assist a coworker in filing an EEO complaint, the supervisor told the complainant, “[t]he one who [is] stupid is you because you were pushing him [Complainant’s coworker] to file an EEO [complaint] against [S2][;] just because you can’t beat him you want somebody else to join in.”
  • Characterizing the complainant’s actions as “pathetic.”

Bert P. v. Army, EEOC App. No. 2020003846 (Nov. 15, 2021)

During the pre-complaint (informal) EEO process, a supervisor told the EEO Counselor “ … employees should have to pay to file an EEO complaint and only get it back if and when they may prevail.” Id. at 7.

The complainant originally saw a copy of the EEO Counselor’s draft report containing the comment. However, the comment was removed from the final report. The complainant testified that after seeing the supervisor’s comment in the draft report, the complainant thought the supervisor believed EEO “complaints are frivolous and [employees] ought to pay a fee so it would deter people from making complaints.” Id.

According to the case, the EEO Counselor removed the comment from the final report after being directed to do so by the EEO Manager. In its Final Agency Decision (FAD) the agency found that this comment amounted to per se retaliation because of its potential chilling effect on future would-be filers. The Commission agreed.

If you’re a supervisor or manager, it’s important to understand your role in the process from the very beginning. That’s why FELTG is offering a brand-new class on June 27 called The Supervisor’s Role in the EEO Counseling and Investigative Processes. In just two hours, we’ll cover everything from how to behave after an employee has claimed discrimination, to how to respond to an investigator’s written interrogatories. Plus, you can ask your questions and get answers in real time. You cannot afford to miss this event. [email protected]

Indefinite Suspensions: When Medical Conditions Create Concerns

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An indefinite suspension occurs when an agency puts an employee in a temporary status without duties and without pay for an undetermined period of time. Learn more.

Read more

A MAJOR New Requirement in Excessive Absence Cases

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By Deborah J. Hopkins, May 13, 2024

We haven’t had many precedential MSPB cases this year, but the eighth one was BIG, involving a new requirement for removals under a charge of excessive absence. Excessive absence removals can be a little weedy, but if you ever handle these kinds of cases for your agency, please take five minutes to read on, or save this article and come back when you have time.

A general principle is the agency cannot take an adverse action against an employee for absences it has approved. It wouldn’t make sense (or be fair) for an employee to be disciplined for a situation where the supervisor had granted discretionary leave, or the employee had an entitlement to the leave (such as sick leave).

However, sometimes approved leave can extend so long that it causes an issue for the agency – most often in situations of extended Leave without Pay (LWOP), and sometimes including copious amounts of sick leave and/or annual leave. In rare circumstances, an agency may remove an employee for excessive absences, even if the employee has been on approved leave, but to justify doing so, the agency must prove the following elements:

  1. The employee was absent for compelling reasons beyond his control;
  2. The absences continued beyond a reasonable time, and the agency warned the employee that an adverse action would be taken unless the employee became available for duty on a regular basis; and
  3. The position needed to be filled by an employee available for duty on a regular basis.

Cook v. Army, 18 M.S.P.R. 610 (1984).

In the precedential case that brings us together today, the Board added a significant amendment to how an agency determines what absences can be tabulated to meet the “beyond a reasonable time” standard:

We hold that, to prove a charge of excessive approved absences, an agency cannot rely on absences that predate the warning… It would be a stretch to consider a notification of potential discipline as a “warning” to the extent that the notice was given after the underlying conduct already occurred.

Williams v. Commerce, 2024 MSPB 8, ¶6-7 (Apr. 23, 2024).

Up until Williams, agencies would typically send the warning letter after hundreds, if not thousands, of hours of absences and then remove the employee fairly shortly after the warning was issued if the employee did not return to work or still had significant absences after he returned to work.

Does Williams mean the agency cannot rely on any of the absences leading up to the warning to return? Not exactly. The Board said, “Prewarning absences may still be relevant for other purposes, such as evaluating medical evidence or determining whether the absences have a foreseeable end. However, they cannot be used to support the charge itself. Rather, a charge of excessive absences will only be sustained when the post-warning absences were themselves excessive.” Id. at ¶8.

In Williams, the absences still amounted to 1,109.25 hours in the one-year period after the agency warned the appellant to come back to work, so the Board held the agency proved its case even after discounting the prewarning absences.

This case raises the question, of course, about what the Board will consider to be “excessive” post-warning. Does existing Board case law still stand, given that until now the pre-warning absences could be counted, or will a new line of cases give us updated parameters?

Fortunately, the Board has indicated at least some past precedent is still good law. In Williams, it cited Gartner v. Army, 104 M.S.P.R. 463, ¶ 10-11 (2007), a case where the agency proved an excessive absence charge when an employee was absent 333.5 hours during a 6-month period (about a third of the time). So, we may not be looking at additional multiple years beyond the warning letter, but we can guess it likely requires several absences over the course of a few months, at a minimum.

We are going to hash this out, along with any other new cases on excessive absence, during next month’s Absence, Leave Abuse & Medical Issues Week, June 3-7. Hope you can make the time to join us! [email protected]

P.S. You can read the full Williams opinion here.