‘Mere Flirtation’ with 16-Year-Old is NOT a Defense to Sexual Misconduct

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By Deborah J. Hopkins, April 15, 2024

Buried in the trove of MSPB’s case inventory are hundreds of cases involving discipline of Federal employees. Maybe it’s because the Board members are working through an unprecedented backlog and are issuing cases at a dizzying pace but, regardless of the reason, I’ve noticed some highly disturbing conduct in recent cases.

The good news is the agencies employing these individuals are almost always taking the conduct seriously. Most have removed offending employees for egregious misconduct. Below are summaries of three cases dealing with removable sexual misconduct in the workplace.

The English Professor Whose Discussion Went Beyond Literature

Fleming v. Navy, PH-0752-18-0457-I-1 (Jan. 26, 2024)(NP)

The appellant was a tenured professor at the U.S. Naval Academy who taught a Rhetoric & Introduction to Literature class. The agency removed him for Conduct Unbecoming a Federal Employee with seven specifications because he:

  • Referred to students as “right-wing extremists.”
  • Made comments about and discussed anal sex, oral sex, and transgender surgery.
  • Emailed partially clothed photos of himself to students after having been counseled that doing so was inappropriate and agreeing to refrain from doing so.
  • Touched students without their approval.
  • Referred to his own sexual experiences.
  • Repeatedly mispronounced an Asian-American student’s name despite being corrected several times.
  • Made demeaning, sexually related comments about a child and her mother because of how they were dressed.

Id. at 2-3.

The administrative judge (AJ) overturned the removal, (surprisingly) finding the agency did not prove any of the specifications, but the Board disagreed and reinstated the removal because all seven specifications of the conduct were unprofessional, and the deciding official’s penalty was within the bounds of reasonableness.

The FBI Agent Who Harassed Young Women

Ybarra v. DOJ, CH-0752-17-0422-I-2 (Mar. 21, 2024)

The appellant, a GS-13 special agent at the FBI, specialized in working cases involving crimes against children. The agency removed him for professional off-duty conduct after learning he made “persistent and inappropriate advances toward two female employees at two different stores … both of whom had separately complained to the local police about the appellant’s conduct.” Id. at ¶2. One of the employees was only 16 years old.

Although the conduct was off-duty, the AJ found the agency “established nexus because the appellant’s misconduct contravenes the agency’s primary mission to protect people…. [and] the appellant was specifically tasked with enforcing Federal statutes to protect children under the age of 18.” Id. at ¶8. She also found nexus because the conduct adversely affected his supervisors’ trust and confidence, as well as that of local law enforcement. The appellant argued his conduct did not establish nexus because it was “mere flirtation,” Id. at ¶9, but the AJ and the Board disagreed.

The Board upheld the removal, finding the penalty reasonable especially because only three months before the events in this case, local police warned the appellant about bothering a young cashier at a grocery store. In addition, the appellant had a previous 45-day suspension for making sexually inappropriate remarks to female colleagues. While the suspension had occurred 14 years earlier, it was still an aggravating factor given the similarity in the conduct.

The agency’s investigation revealed the appellant had engaged in additional misconduct, but it declined to charge him for the below instances, listed in ¶2:

  • Failure to report police contact related to the two store employees,
  • Lack of candor in the same incidents involving the two store employees,
  • Making several unwanted sexual advances toward colleagues,
  • Engaging in a profane outburst during firearms training,
  • His role in a domestic disturbance between his son’s mother and a female neighbor with whom he was having a relationship, and
  • Unauthorized use of an FBI database to obtain the telephone number of a former female investigation subject.

The Board held that while the agency “took an unusual approach to its disciplinary action … assessing each charge in isolation and proposing the appellant’s removal based solely on what it considered to be the most serious one,” the removal for the charged misconduct alone was still warranted. Id. at ¶15.

The Supervisor Who Had an Affair with a Married Subordinate

Riley v. USPS, DC-0752-16-0465-I-1 (Feb. 20, 2024)(NP)

The appellant, a postmaster, was removed for Improper Conduct after he admitted to having a sexual relationship with a subordinate, who was married at the time of the affair. His proposed removal notice also indicated he sent inappropriate text messages to, inappropriately touched, and/or pursued a sexual relationship with other female subordinates.

The appellant argued that the relationship with his married subordinate was consensual and personal and did not constitute improper conduct, because it did not result in favoritism or an unsafe work environment. The agency countered that favoritism was not an essential part of the charge and that the conduct was improper regardless of whether it was consensual, because of the appearance of impropriety or favoritism to other employees who learned of the affair.

Regarding his conduct with other employees, which included attempting to have sexual relationships with them, the Board also found improper:

  • A text message the appellant sent to a subordinate, telling her that she was his favorite and that he would be on her “like a cheetah on a gazelle.” at 6.
  • The appellant put his hand up a different subordinate’s shirt and unhooked her bra. at 7.

Agencies have long taken actions involving sexual misconduct seriously, and it’s a good thing because this type of conduct is one of the most effective ways to make a workplace unsafe and drive away good employees. The Board clearly sees things the same way. Hopkins@FELTG.com

The Good News: A Meeting CANNOT Be a Formal Discussion AND a Weingarten

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By Ann Boehm, April 15, 2024

I teach a lot of classes where we discuss when a union representative has the right to attend a meeting between a representative of the agency and one or more bargaining unit employees. The statutory guidance on meetings is in 5 U.S.C. § 7114(a)(2). There are two different types of meetings that the union may attend – formal discussions (§ 7114(a)(2)(A)), and Weingarten meetings (§ 7114(a)(2)(B)).

In training sessions, I regularly present meeting scenarios and ask participants if the meeting is a formal discussion or a Weingarten meeting. Far too often, the response from participants is “both.”

Wrong answer. It cannot be both. If you do not trust me, please trust the FLRA.

Way back in 1985, the FLRA provided a thorough analysis of two different types of meetings in 5 U.S.C. § 7114(a)(2). Dep’t of Health and Human Services, Social Security Administration, 18 FLRA 42 (1985) (HHS). The FLRA explained that “section 7114(a)(2)(A) and section 7114(a)(2)(B) provide respectively that ‘(a)n exclusive representative . . . shall be given the opportunity to be represented at – (A) any formal discussion . . . or (B) any examination . . . in connection with an investigation . . ..’ The use of the conjunction ‘or’ to separate these sections indicates a Congressional intent that the right to union representation at formal discussions in section 7114(a)(2)(A) be separate from the right to union representation at an examination contained in section 7114(a)(2)(B).” Id. (emphasis added).

I rest my case.

In case you still need additional explanation, the HHS case did that by looking at the legislative history of section 7114. The FLRA noted that the representation right at formal discussions was intended “to apply to union representation at certain formal discussions between representatives of an agency and unit employees concerning grievances, personnel policies or practices or other general conditions of employment” and NOT “meetings which are ‘highly personal, informal meetings.’” Id.

By contrast, the legislative history regarding section 7114(a)(2)(B) Weingarten right establishes a representation right in a very narrow situation – an examination of a unit employee in connection with an investigation. The FLRA highlighted that “such a right will only attach where the employee who is being examined reasonably believes that the examination may result in disciplinary action and the employee requests representation. The requirement that the employee request representation further highlights the distinction between the right to representation under section 7114(a)(2)(A) and section 7114(a)(2)(B) respectively.” Id. (emphasis added). The FLRA continued: The “right to union representation under section 7114(a)(2)(A) is not contingent upon an employee’s request for such representation at formal discussions although it is a requirement for representation” at Weingarten meetings. Id.

There you have it, folks. A meeting cannot be both a formal discussion and a Weingarten meeting. That matters because the processes are different.

Make sure you assess the different meeting parameters for a formal discussion and a Weingarten meeting when considering whether the union can be present. Following this guidance will enable you to know when to and when not to allow the union’s presence in meetings between management and bargaining unit employees. And that’s Good News! Boehm@FELTG.com

[Editor’s note: Looking for more guidance, register for FLRA Law Week, which runs May 6-10, or the 60-minute webinar The Union Doesn’t Get to Attend Every Meeting on August 6.]

 

The Clean Record Provision is Not Always So Clean

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By Dan Gephart, April 15, 2024

If you’re thinking of using a clean record provision to settle a potentially expensive and litigious employment law situation, you’re not alone. But while clean record agreements are a popular alternative disciplinary tool, they are not without their own set of problems.

For the uninitiated, a typical clean record provision is a term in a settlement agreement in which the agency agrees to change, remove, or withhold potential negative information about the employee’s performance or conduct, while the employee agrees to drop employment-related claims against the agency.

Sixteen months into his term, President Trump released a flurry of executive orders (EOs) impacting the Federal workplace, including one that effectively banned the use of CRAs. Those actions were overturned when President Biden issued an EO rescinding them.

Meanwhile, OPM, who had developed and implemented regulations to comply with President Trump’s EOs, had to re-develop and implement updated regulations. At the time, OPM guidance said agencies were permitted to implement a clean record agreement with an employee, even though the regulations prohibited such an action. Many FELTG readers told us judges were not keen on that approach. Fortunately, OPM regs now match President Biden’s EO. We again have consistency.

The return of CRAs seems like an obvious win-win. Agencies save the time and money of litigating a case, while avoiding the impact languishing cases tend to have on agency credibility and supervisor morale.

Meanwhile, the agreements give employees the opportunity to apply for future positions without any stains on their Federal personnel records.

Or do they?

In its 2013 report Clean Record Settlement Agreements and the Law, the MSPB stated: “Several of the appellant attorneys we spoke with indicated that the primary reason why appellants seek clean records is to aid them in their efforts to obtain another Federal position.”

And, as you know as a federal employee, there is paperwork that goes along with securing a federal job. (I’m looking at you OF-306!). And you sure as heck better not lie on those reports lest you find yourself even less Federally employable.

Honesty isn’t a one-sided coin when it comes to CRAs. Agencies are required to be truthful, especially when talking to Federal investigators in connection with background investigations. We explained as much in a somewhat-recent Ask FELTG article. This requirement to be truthful also applies to suitability determinations and other inquiries related to vetting for personnel security.

But wait, there’s more. Other reasons a CRA may not be the best option include:

  • An appellant does not need show actual harm, such as a failure to obtain a position or other form of monetary loss, in order to establish that a clean record (nondisclosure) provision has been materially breached. Cardoza v. DOJ, 53 MSPR 264 (1992).
  • A clean record provision implies a confidentiality clause when one is not present. In Torres v. DHS, 110 MSPR 482 (2009), the agency agreed to replace the removal SF-50 with a resignation SF-50. However, several former coworkers told a private company that the employee resigned in lieu of removal.
  • CRA compliance is not easy to police, especially as time wears on.

More than half of the settlements before the MSPB involve CRAs. Here are some of the issues to consider when determining whether to go the CRA route:

  • What items will be removed from a record?
  • What systems of records will be cleaned?
  • What obligations does an agency have to support the record in communications with others?
  • Who is bound by the commitments?
  • Details on references.
  • How things outside the agreement can affect the ability of parties to meet their obligations.

This is not to say that CRA can’t be an effective time and money-saving tool. As is the case with other alternative discipline strategies, there are great advantages. You just have to do your homework before you jump in. The best way to do that is to join FELTG President Deborah J. Hopkins on May 21 at 1pm ET for Clean Records, Last Rites, Last Chances, and Other Discipline Alternatives. Gephart@FELTG.com

Should I Stay or Should I Go? Either Way, Workers’ Comp Rule Applies

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By Frank Ferreri, April 15, 2024

For those of us who don’t work remotely 100 percent of the time, getting to and from work, with possible stops along the way, comes with the risk of getting injured.

To handle the “what ifs” in the world of going to and coming home from work, workers’ compensation law across the country, and in the Federal government, has developed what’s known as the “going and coming” rule, which is also called the “coming and going” rule, depending on which judge you read.

The Employees’ Compensation Appeals Board (ECAB), following the lead of state and Federal courts around the country, has maintained that for employees having fixed hours and a place of work, injuries occurring off premises while going to and coming from work before or after work hours or during a lunch break are not compensable. However, there are exceptions, some of which we explore below.

Special Errand Rule

An employee who has identifiable time and space limits on her employment makes an off-premises journey that would normally not be covered under the going and coming rule. However, if the trouble and time of making the journey or the special inconvenience, hazard, or urgency of making it in the particular circumstances is sufficiently substantial, it can be viewed as an integral part of the service itself. See A. Larson, The Law of Workers’ Compensation § 13.00 (2007).

Case example

N.J. and Department of Justice, Federal Bureau of Prisons Metropolitan Detention Center, No. 20-1148 (ECAB 2021). A corrections officer filed a CA-1, alleging she was injured in a motor vehicle accident while in the performance of duty. She was driving to firearms training when a large tree branch fell through the windshield and roof of her vehicle just before she was rear-ended by a speeding car.

OWCP denied her claim, finding that the officer’s injury did not occur during the course of her employment. ECAB disagreed, noting the special errand exception was met because:

  • She was expected to perform her official duties on requalifying with her required weapons.
  • A daily assignment sheet demonstrated that she was assigned to perform firearms training on the day of the employment incident.
  • An assistant human resources manager indicated that the officer’s firearms training was a yearly requirement associated with her employment duties.

Rural Carrier Exception

When an employee is required to bring along her own car, truck, or motorcycle for use during the working day, the trip to and from work is, by that fact alone, considered within the course of employment. See Lex K. Larson, Larson’s Workers’ Compensation, § 15.05 (2013). Rural carriers may use their own vehicles to deliver their routes, which is a benefit to the agency. The carriers may be deemed in the performance of their duties when they are driving their vehicles to and from their route.

Case example

J.C. and U.S. Postal Service, Kentuckiana District, No. 17-0995 (ECAB 2017). A rural carrier, who was working as a supervisor of customer services, alleged she injured her shoulders and neck when she was involved in a motor vehicle accident around 7:40 a.m. on the day in issue. OWCP decided the carrier was not in the performance of duty when injured.

On appeal, ECAB agreed. The board noted the carrier was not driving her vehicle to work as a rural carrier but for her role as an acting supervisor. “Regardless of whether appellant used her private vehicle while acting as a rural carrier, she was not scheduled to perform the task of delivering mail,” ECAB wrote. “Rather, she was driving to the Benton, Kentucky, post office where she had been an acting supervisor for four months.”

Workers on Travel Status

FECA covers an employee 24 hours a day when the employee is on travel status and engaged in activities essential or incidental to such duties.

Case example

J.N. and Department of Homeland Security, Transportation Security Administration, No. 14-1764 (ECAB 2015). An air marshal alleged he sustained a cervical spine fracture, a collapsed right lung, a concussion, numerous lacerations, high blood loss, and extensive bruising when he was involved in a motor vehicle accident while en route from his home to an offsite training class. The air marshal alleged he was on the clock and that by reporting directly to the training location, he avoided three hours of overtime pay status for the agency.

OWCP disagreed, finding the air marshal was not in the performance of duty. ECAB affirmed. According to the Board, the air marshal was permitted to drive his personal vehicle to the training session for personal convenience, and precedent cases established that air marshals are not in travel status while commuting to work.

“His travel to attend training was no more for the benefit of the employer than any other worker’s commute,” ECAB wrote. “Appellant’s decision to travel to the training in his personal vehicle was by his own choice, not by any mandate of the employer.” 

Premises Rule

This exception applies just about everywhere in U.S. workers’ compensation law and covers situations where an employee isn’t on the clock or on the job yet but experiences an injury on the employer’s premises. A common locus for premises rule cases is a parking lot, and the premises doctrine is applied to those cases where it is affirmatively demonstrated that the employer owned, maintained, or controlled the parking facility, used the facility with the owner’s special permission, or provided parking for its employees. Rosa M. Thomas-Hunter, 42 ECAB 500 (1991).

Case example

Hartman and Social Security Administration, Office of Hearings and Appeals, No. 01-749 (ECAB 2004). A legal assistant was in the underground parking garage after a power outage led to all employees being released from work. She fell over a bicycle rack and injured her hands, shoulders, knees, legs, back, and neck. OWCP applied the going and coming rule to reject the assistant’s claim. It noted her injury did not fall within an exception to the rule that injuries sustained by employees having fixed hours and places of work while going to or coming from the job are not compensable.

ECAB noted the premises rule has a close relative — the “special hazard” rule. However, it didn’t apply here because “the hazard encountered by appellant was not an exceptional or uncommon hazard.” ECAB likened the darkened parking garage to dangers that arose in other cases in which a special hazard exception did not apply, including:

  • An assault on the streets while going to work. Jimmie D. Harris, Sr., 44 ECAB 997 (1993).
  • Wax on a public plaza immediately outside the only exit. Sallie B. Wynecoff, 37 ECAB 728 (1986).
  • A traffic accident resulting from a backup for a security checkpoint. Bettie J. Broadway, 44 ECAB 265 (1992).
  • An icy sidewalk. Denise A. Curry, 51 ECAB 158 (1999).

In each of these cases, ECAB found the hazards were common to all travelers.

Proximity Exception

Treated as a subcategory of the premises rule and dependent on the special hazard exception, the proximity exception stands for the principle that the course of employment should extend to an injury that occurs at a point where the employee is within the range of dangers associated with the employment. There must be a special hazard before the proximity rule kicks in.

Case example

D.C. and U.S. Postal Service, Post Office, No. 08-1782 (ECAB 2009). A custodian injured his right wrist when he “fell on ice at a curb” immediately following his work shift. OWCP rejected the claim explaining that, although the USPS was responsible under local law for keeping the sidewalk clear of ice and snow, the sidewalk was not part of the agency’s premises.

ECAB agreed because the sidewalk in question was a public sidewalk. The custodian did not present evidence the sidewalk was used exclusively or principally by agency employees for the convenience of the agency. There are other exceptions that are generally recognized as well, including in the following scenarios:

  1. Where employment requires the employee to travel on the highways.
  2. Where the employer contracts to and does furnish transportation to and from work.
  3. Where the employee is subject to emergency calls, as in the case of a firefighter.
  4. Where the employee uses the highway to do something incidental to her employment with the knowledge and approval of the employer.
  5. Where the employee is required to travel during a curfew established by local, municipal, or state authorities because of civil disturbances or other reasons.

What does all this mean for an agency? It’s hard to predict how a case will go, and most results depend on case-specific facts. However, as a basic concept, the more an employee’s coming or going is to do something for the agency rather than herself, the more likely it will be FECA-covered. info@FELTG.com

Changing an Existing Accommodation is STILL a Terrible Idea

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By Deborah J. Hopkins, April 15, 2024

In this newsletter, we’ve talked about the “coming and going rule” and an agency’s responsibility in the workers’ comp arena. In previous newsletters, we’ve discussed the dangers of altering an existing accommodation.

On a related note, what happens when an agency changes an accommodation it provided to assist an employee with ambulatory issues accessing (coming to and going from) her workspace? Consider Malorie D. v. DOJ/DEA, App. No. 2019003000 (Sept. 15, 2020).

The complainant worked as GS-7 intelligence program support assistant. She requested a reasonable accommodation of a parking space that was close to the building and to the door nearest her workstation. She specifically asked to be assigned the only parking spot reserved for individuals with disabilities in her building’s west (supervisor’s) parking lot, because the parking area was on a flat surface and the closest lot to her office. The agency approved her request.

Thereafter, two other employees who had parking placards because of disabilities also requested reserved parking. The agency initially reserved two parking spaces in the south parking lot for these individuals. Just a few days later, agency management sent an email to all employees in the office that any individual “requesting reserved parking was required to use designated spots in the east parking lot; [and] that entry to the building would be through the secured entry point…” which was also known as the “front door.” Id. at 2.

The complainant informed the agency the change in her accommodation “was problematic because the handicap spaces in the east parking lot were farther from her office than the space in the west parking lot and that the front door was often not attended to by duty personnel, forcing her to walk a long distance to the north entrance of the building.” Id. In addition, the east parking lot was not flat. It had curbs and ramps that caused her to trip and fall.

During the precomplaint process, the agency supervisor who revoked the complainant’s existing accommodation informed the EEO counselor he was no longer able to provide the complainant with her original parking spot because he could not “be put in a position to decide which employee is more handicapped than another. Because of the problems associated with this particular handicap spot in the Supervisors [west] parking area, the handicap designation is being removed from the spot.” Id. at 3. The agency designated the complainant’s previous parking spot as reserved for the employee of the month.

The complainant filed a formal EEO complaint. After initially requesting a hearing, she withdrew the request. The agency issued a Final Agency Decision (FAD). The agency determined that after revoking the complainant’s parking spot in the west, it still provided her with a reasonable accommodation when it offered her designated parking in the east lot because the east lot was only “slightly further away from Complainant’s office than her previously assigned parking space in the west parking lot.” Id. at 4. In addition, because the complainant was only unable to access the building via the front door just five times in six months, “the infrequent lack of immediate access does not render the accommodation in the east parking lot unreasonable.” Id.

On appeal, the EEOC disagreed with the FAD. They found the agency failed to “engage in the interactive process prior to removing the accommodation it had provided her for nearly four years.” Id. at 7.

We’ve said it before and we’ll say it again: If an accommodation is working, the agency should not revoke it without, at a minimum, engaging in the interactive process to see if another effective accommodation is available.  And because the agency did not do so, EEOC remanded the case for a compensatory damages assessment.

This summer we’re bringing back our always-popular Reasonable Accommodation series, with six 60-minute sessions, each targeted to a particular accommodation challenge. Or, bring an Agency Direct Reasonable Accommodation training to your workplace. Hopkins@FELTG.com