By Dan Gephart, December 12, 2023
FELTG Nation, welcome to another year-end News Flash, where we reveal the two most popular FELTG newsletter stories (based on the number of reads and forwards) for each month of 2023.
This is our fifth year in this format, which allows us to reflect on the challenges we’ve overcome this past year, as well as those we’re still facing down.
Let’s dive in.
FELTG President Deborah Hopkins’ widely read annual look at the State of the Civil Service kicked off the new year. However, the article most read in January involved a case where the agency offered an employee the reasonable accommodation of telework on Monday, Tuesday, and Thursday. The employee wanted Monday, Tuesday, and Wednesday as telework days. Does the employee get to pick which days she wants to telework? In this case, yes.
A couple of years ago, this feature was brimming with articles about vaccines and masks, albeit at a time with no quorum at the MSPB. It took the new Board less than a year to decide the first two COVID-19 cases. The most-read story of the month describes the two decisions, both involving the Air Force. Deb also wrote about an EEOC case that seemingly broadened the type of action considered a “tangible employment action” in Federal agencies.
The MSPB’s non-precedential decision in one of the aforementioned COVID-19 discipline cases – Ortiz v. USAF, DE-0752-22-0062-I-1 (MSPB 2023)(NP) – appeared to go against more than 40 years of case precedent. It left Deb shaking her head. In response to the decision, FELTG founder and former president Bill Wiley asked: “Given that there can be a considerable cost to an agency when it suspends an employee, and given that an agency usually doesn’t expend resources without some gain in return, what is the benefit that the agency hopes to attain in exchange for a misconduct suspension?”
There has been plenty of litigation over how much EEO official time is reasonable, and how much control an agency has over the complainant’s use of it. The EEOC offered its thoughts in Aline A. v. USDA/ARS, EEOC Appeal No. 2022003111 (Mar. 8, 2023), and Deb wrote about it.
Meanwhile, Bill shared his thoughts about the Federal termination process after it was reported that the 26-year-old gunman responsible for the deadly mass shooting at a Louisville bank did so after finding out he was about to be fired.
Reprisal makes up the bulk of the EEOC’s case load. The EEOC defines reprisal as “treating employees badly because they complained about discrimination on the job, filed a discrimination charge or complaint, or participated in any manner in an employment discrimination proceeding [emphasis added].” We reminded readers about the various actions that are considered protected EEO activity. Know them. You don’t want to end up a meme.
May’s top story focused on an MPSB decision that described numerous mistakes by the deciding official. Yet, somehow the agency’s removal still prevailed thanks to the “most important Douglas factor.”
Feeling down about your job? Each month, FELTG Instructor Ann Boehm supplies the Good News, a positive and practical spin on the demands you face. One question we hear a lot in training is: How do we handle employees who are angry, rude, disruptive, and prone to inappropriate comments? Ann’s column resonated with a large swath of our readership when she wrote words and attitudes matter – and can justify removal.
Speaking of removal, it’s supposed to be a lot easier when the employee is in a probationary period; that is, unless you wait until the very last minute. Deb tells the tale of a Division Chief’s painful and costly lesson.
This past year, the Supreme Court upended decades of precedent in its unanimous decision Groff v. DeJoy, No. 22–174 (Jun. 29, 2023). This is a big change for the concept of undue hardship in religious accommodation, experts said. But is it really? Deb and FELTG Instructor Bob Woods weighed in on the Groff case in July’s most-read article.
One of the most shocking decisions we came across this year involved a Federal employee who unknowingly broadcast a taxpayer’s phone number, the amount of back taxes she owed, and other personally identifiable information live on Howard Stern’s satellite radio show.
In light of the Pregnant Workers Fairness Act, which took effect this past year, readers flocked to our story, which included tips, pointers, and reminders to ensure you know what you’re expected to do when employees are expecting.
Hostile work environment still happens. A lot. And it should be taken seriously. But not everybody really understands what it is, or more accurately, what it isn’t. Ann fills in the details on why hostile work environment is harder to prove than you think.
What do the FBI agent who fired his weapon at a potential car thief and the disrespectful VA nurse have in common? In two nonprecedential cases, they had their agency’s initial removal penalty re-imposed by the Board, which reversed the AJ’s mitigation. Also generating clicks in September was our story recounting findings of discrimination for the inappropriate disclosure of medical information.
Deb’s story about a supervisor who loudly berated subordinates and treated them with disrespect drew the most reads and forwards in October. The supervisor’s conduct was clearly unprofessional. And, yes, it showed a lack of patience. But did it rise the level of actionable misconduct?
Also generating interest that month was an MSPB administrative judge’s decision to uphold an employee’s removal for lack of candor after she violated the agency’s telework policy and continued to work remotely from a different state for several months.
To Ann’s dismay, agencies are overcomplicating their approach to post-Santos performance improvement plans. One supervisor told her his agency wanted to conduct a pre-PIP before instituting a PIP, because counsel was afraid of Santos. Ann’s message: Don’t be afraid. And keep it simple.
Conditions such as cancer, Crohn’s disease, and asthma can pose particular challenges when determining effective reasonable accommodations, due to their episodic nature. Don’t get tripped up. Sticking with the tried-and-true approach to reasonable accommodation, Frank Ferreri wrote, is the best way to find effective solutions and protect yourself from an EEOC finding.
If you’re looking for a last-minute gift for a colleague, don’t ask for suggestions from the VA employee in December’s most-read story, where Deb wrote about repellant actions during the holidays that were definitely NSFW (not suitable for work) — or anywhere for that matter. Frank coined the term discrimination by decoration as he explained how to keep the holiday season jolly and free of workplace discrimination.
Happy holidays and best wishes for a great 2024. [email protected]